Source: WWW.delhihighcourt.nic.in
The Hon’ble Delhi
High Court in a recent judgement in the case of, Vior
(International) Ltd. & Anr. v. Maxycon Health Care Private Ltd., held
that the acts of the Defendants for unauthorized manufacturing
and selling of patented product amounts to infringement of Plaintiffs rights
granted under Section 48 of the Patents Act, 1970. Further, the act of the Defendants
of blatantly copying the content of Plaintiffs website is in violation of the
copyright vested with the Plaintiffs and amount to infringement as per Section
51 read with Section 14 of the Copyright Act, 1957.
The Case
Facts
Vior (International) Ltd. (hereinafter referred to as ‘the Plaintiff
No. 1’), a Switzerland based company, are exclusive owners of registered Indian
Patent no. 221536, a product by process patent on Ferric Carboxymaltose, a
novel water-soluble iron carbohydrate complex prepared by a novel process. The
patented product is useful in the intravenous treatment of iron deficiency when
oral iron preparations are ineffective or cannot be used. The Plaintiff 1 has
granted a licensee to Plaintiff 2, a company incorporated under the Companies
Act, 1956, for the manufacture and commercialization of above patented product,
in India. Further, Plaintiff 2 is the owner of the copyright with respect to
literary work on website the www.emcure.co.in.
The Plaintiffs filed a suit for restraining the
Defendants from infringement of Indian Patent No.221536; infringement of
copyright in the literary work; dilution & tarnishment of brand image of
the Plaintiffs; malicious falsehood; delivery up; rendition of accounts;
damages etc. against the Defendants.
Further,
the Plaintiffs pleaded that the Defendants are manufacturing and selling the
impugned patented product and falsely represented on their website that the Plaintiff
no.1 has given an IP license to the Defendant no. 1 to manufacture and
commercialize the impugned patented product.
Still,
further, the Plaintiffs pleaded that Defendant no. 1 has blatantly copied the
literary write-up/content of the Plaintiff No.2s website www.emcure.co.in,
thereby amounting to infringement of the copyright of Plaintiff No.2. Such
activities of the Defendant no.1 also amounts to dilution of the brand image of
the Plaintiffs thereby resulting in unlawful enrichment.
Furthermore,
the Plaintiffs pleaded that the Defendant No.1, despite the operation of an ad-interim injunction against it,
continued its infringing activities through the Defendant No.3 and under the
able guidance of the Defendant No.2.
As
none appeared on behalf of the Defendants despite service of notices hence the
proceedings are treated ex-parte.
Issue:
- Whether the acts of the Defendants for unauthorized manufacture and sale of patented product amounts to infringement of Plaintiffs’ patent rights?
- Whether the act of the Defendant no. 1 for misrepresenting on the website as being an IP license holder of impugned patent amounts to infringement of Plaintiffs’ patent rights?
- Whether the act of the Defendant no. 1 for blatantly copying the content of the Plaintiff no. 2 website, amounts to infringement of Plaintiff no. 2’s copyright?
Plaintiff’s
Contentions
The Plaintiffs relying upon the evidence of sole witness, Shri
Pankaj Pahuja (PW1) and the documents Ex. PW1/1 to Ex.PW1/23,
Ex PW1/B, Ex.PW1/A1 to Ex.PW1/A5
as well as Mark E to Mark H, argued that the act of the Defendants are
nothing short of oppressive, arbitrary and unconstitutional.
The Plaintiffs’ relying upon the decision by the Division
Bench of Delhi High Court in paragraph number 69 and 70 of Hindustan Unilever Limited v. Reckitt Benckiser India Limited, 2014
(57) PTC 495 [Del] [DB] claimed for damages to the tune of INR 1,00,01,000 (USD
142861 approx.). The Plaintiffs have claimed the rendition of accounts of
profit illegally earned by Defendants or in the alternate damages to the extent
of INR 1,00,01,000 (USD 142861 approx.).
Further,
for claiming the punitive damages, the Plaintiffs relied upon the case of Jockey International Inc & Anr. vs. R.
Chandra Mohan & Ors. CS(OS) 253/2012, wherein it was held that one who
chooses to stay away from the proceedings of the Court, should not be permitted
to enjoy the benefits of evasion of Court proceedings. The damages in such case
must be awarded.
Analysis by the
Court on unauthorized manufacture and sale of patented product under misrepresentation
as IP license holder
The Court while determining whether a patent has been
infringed, took into consideration Section 48 of the Patents Act, 1970, and
held that the act of the Defendants to deal with the
impugned API clearly relates to the product Ferric Carboxymaltose as has been
claimed by the Plaintiff No.1 in its independent claim 1. Further, such a
product cannot be clinically effaceable without using the
process
as claimed. The Court agreed with the Plaintiffs
that the acts of the Defendants amount to infringement of the Plaintiffs’
rights.
Analysis by the
Court on blatant copying of literary work
The Court while examining the issue of copying of literary
work, took into consideration Section 51 read with Section 14 of the Copyright
Act, 1957, and held that the act of the Defendant No. 1 of
blatantly copying the content of the Plaintiff No.2’s website is in violation
of the copyright vested with the Plaintiff No.2 and amounts to infringement of
copyright by the Defendant No.1. The Court relied on the case of R.G Anand vs M/S. Delux Films & Ors.
and held that the literary work of Defendant No.1 in its website is
substantially similar to the content of the Plaintiff No.2, thus, such an
adoption is mala fide and is with a clear intention on the part of the Defendant
to save himself of the labour. Moreover, the acts of the Defendant No.1 in
publication of a statement indicating a false association with the Plaintiff
No.1 amounts to a tort of malicious falsehood.
The
Court also relied on the decision of Rookes
v. Barnard (1964) and awarded damages that is not merely to compensate the Plaintiffs
for the loss that has been sustained by reasons of the Defendants’ wrongful
act, but also to punish the Defendants in an exemplary manner and vindicate the
distinction between a willful and innocent wrongdoer.
Decision of the
Court
The Court held that the act of the Defendants amounts to
infringement of patent and copyright of the Plaintiffs. In view thereof, damages
for a sum of INR 10,00,000 (USD 14284 approx.) in favour of the Plaintiffs and
against the Defendants, is passed on account of infringing the registered
marks, trade dress and violating interim order.
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