Delhi High Court: In a petition filed by the Glaxo Group (‘Glaxo’) (decree holders) for execution of a decree passed in a suit for infringement of trademark by the defendant, Jasmeet Singh, J, while restraining defendants from infringing upon Glaxo’s trade mark, held that the Court in an execution petition could arrive at a finding that the products of the judgment-debtors were similar and infringing the trademark of the decree-holders, in order to execute the decree of injunction, and can pass orders subsequently, so as to give effect to the decree.
Background
Glaxo, a renowned name in the business of manufacturing pharmaceuticals, had filed a suit for permanent injunction against the defendant for misappropriation of Glaxo’s registered trademarks. The defendants had been manufacturing pharmaceuticals in the name and style of “ETORIWIN”, “ARIBRIX”, “POLYRIX”, etc. as against products manufactured by Glaxo “OTRIVIN”, “AMBIRIX”, “POLIORIX”, etc., which are registered trademarks owned by Glaxo.
A joint compromise application was filed wherein the defendants had undertaken that they had no unfinished products and any other products bearing the impugned marks or products with marks deceptively similar to that of Glaxo would be destroyed immediately.
In view of the joint compromise application and prayers in the plaint, the suit was decreed in favour of Glaxo, therefore, Glaxo had filed the present execution petition seeking enforcement of the decree.
Glaxo submitted before the Court that the defendants had been infringing their trademark ‘BETNESOL’ by using the mark ‘BETNEVIN’, which also bore resemblance to Glaxo’s packaging.
Contentions of the Parties
It was contended by the defendants that an Executing Court could not go beyond the terms of the decree, and that the moment the Court assesses the matter of infringement, it went beyond the domain of the Executing Court. The defendant further submitted that the issue of infringement should have been brought up in a new suit by Glaxo, and not before an Executing Court.
Decision and Analysis
Upon hearing the submissions of both the parties, the Court referred to Chittoori Subbanna v. Kudappa Subbanna, and Essco Sanitations v. Mascot Industries (India), wherein it was observed that a Court, in an execution petition, could determine that the judgment-debtors’ products were similar and infringed upon the decree holders’ trademark to enforce the injunction decree and issue subsequent orders, and further that the Supreme Court had stated that it would not matter if the decree’s terms or directions were contrary to law, the Executing Court must enforce the decree without questioning it.
The Court, therefore, restrained the defendants from using the mark ‘BETNEVIN’ and the product packaging to that of ‘BETNESOL’, observing that the product and packaging of the defendants was similar to that of Glaxo.
Thus, the Court disposed of the execution petition, granting liberty to Glaxo to revive in case of further infringement by the defendants.
[Glaxo Group Limited v. Rajiv Mukul, Ex. P. 9 of 2022, decided on 08.05.2024]
Advocates who appeared in this case :
Advocates for the Decree Holders: Shwetasree Majumdar, Tanya Varma, Shilpi Sinha, Vardaan Anand, Advocates.
Advocates for the Judgment Debtor: Sidharth Bambha, Sucharu Garg, Advocates
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