IN THE HIGH COURT OF DELHI AT NEW DELHI 
                        
                SUBJECT : Companies Act, 1956 
                        
               I.A. 7326/2007 in CS (OS) 1189/2007 
                        
                 Reserved on: 4th March 2008 
                        
                Date of decision: 1st July 2008 
        
       DR. RECKEWEG and CO. Gmbh. and Anr. 
                            .... Plaintiffs 
       Through Mr. : Amit Sibal, Mr. 
       Gaurav Mitra, Advocates 
        
        
                     versus 
        
       M/S. ADVEN BIOTECH PVT. LTD. 
                            ..... Defendant 
       Through Mr. Kiran Suri, Mr. Harish Arora, 
       Mr. Purvesh, Advocates 
        
        
       Mr. Justice S. Ravindra Bhat: 
        
       1. This order will dispose off IA No. 7326 of 2007, by which the plaintiff 
       seeks an ad-interim order to restrain the defendants from passing off and 
       infringing the plaintiff”s copyright, by using the identification numbers in 
       respect of homeopathic medicines that are claimed to be deceptively similar 
       to the plaintiffs” marks.  
        
       2.  The  facts  relevant  for  the  present  purposes  are  as  follows.  The  first 
       Plaintiff is a company incorporated under the laws of Federal Republic of 
       Germany,  having  its  office  at  Berliner  Ring  32,  D-64625,  Bensheim, 
       Germany. It is manufactures and markets homoeopathic medicines for the 
       past sixty years. The plaintiff”s medicines are sold in forty countries across 
       the globe; they have been sold in India since 1980. The second Plaintiff is a 
       company registered under the Companies Act, 1956 and is engaged in the 
       distribution and marketing of the first Plaintiff”s homeopathic formulations 
       in India.  
        
       3.  The  Plaintiffs  claim  to  have  been  manufacturing  Homoeopathic 
       Specialties known as R-Series in Germany for the past 60 years and that 
       these have been recognized for their high efficacy and unique composition. 
       They also  allege  that  while  preparing  the  Homeopathic  Specialties  apart 
       from  good  manufacturing  practices  (GMP),  national  and  international 
       production guidelines  are  taken  into  consideration  and  they  are  prepared 
       strictly  following the German Homoeopathic Pharmacopoeia. It is further 
       averred  that  the  medicines  are  manufactured  for  different  diseases  and 
       ailments, and were numbered initially as R 1 to R 75 and subsequently R 76 
       to  R95  were  added.  The  letter  “R”  is  derived  from  Dr.  Reckeweg,  the 
       founder  promoter  of  “Dr.  Reckeweg  and  Co.  GMBH,  Germany  and  the 
       numerals 1,2,3 and so on indicate specialties of the medicinal formulations 
       of the first Plaintiff. They aver that the numbering proceeded proportionally 
       to  the  number  of  medicines  manufactured  to  combat  emerging  diseases. 
       Since the first Plaintiff administers strict and vigorous quality control, the R- 
       Series  with  unique  composition  of  ingredients,  formulated  after  years  of 
       research and clinical efforts, it is submitted, generated much goodwill and 
       reputation.  These  specialties  R  -1  to  R-75  have  been  registered  in  the 
       country of origin since 1978 and have the registration number indicated on 
       the container itself. Relying upon the sales figures and figures relating to the 
       expenditure on the promotion of the brand the Plaintiffs submit that there 
       has  been  tremendous  growth  use  and  consumption  resulting  in  ever 
       increasing business of R-series of medicines.  
        
       4.  The  plaintiffs  state  that  the  R  Series  code  is  displayed  on  packaging 
       containing  homeopathic  specialties  and  also  on  points  of  sale  of  those 
       medicines. These have been used in India extensively since the year 1980. 
       They  also  aver  that  the  efficacy  and  consequent  acceptability  of  these 
       medicines is such that mere mention of letter “R” in conjunction with the 
       requisite  numeral  is  considered  as  the  first  plaintiff”s  product.  The  first 
       plaintiff is also the owner of the following copyrights of the literary works 
       pertaining to the homeopathy. (i) 'Homeopathy for total and safe cure 1-75' 
       bearing No. L-18275/99, first published in India in 1982 and L-18357/99. 
       (ii)  Homeopathic  Specialties  bearing  L-18231  first  published  in  India  in 
       1982. (iii) 75 Vishist Homeopathic Aushdhyan bearing No.18356/99 first 
       published in 1982 (in Hindi) (iv) 90 Homeopathic Specialities bearing L-
       18226/99  first  published  in  India  in  1982.  (v)  90  Vishist  Homeopathic 
       Aushdhyan bearing no.18355/99 first published in 1982 Hindi. Apart from 
       these, the plaintiffs also claim to have prepared and developed catalogues in 
       English, Hindi and Bangla in relation to the R series of medicines, circulated 
       free  of  cost  in  order  to  guide  the  intermediary  stockists,  practioners  and 
       users.  In  this  regard  the  plaintiffs  have  placed  on  record  copies  of  the 
       registration certificates. They also aver as to the legal actions pursued by 
       them in respect of their rights in R-series.  
        
       5.  It  is  averred  that  on  28th  June  2007  the  plaintiffs  noticed  that  the 
       defendants were marketing homeopathic medicines under the alpha numeric 
       series deceptively similar to the plaintiffs, as A-1 to A-75. It is submitted 
       that though the products were launched formally, commercial distribution of 
       the same had not commenced. It is alleged that not only did the defendants 
       completely copy the alpha numeric series and corresponding ailment clearly 
       indicated on each products but they also copied a substantial portion of the 
       literature/catalogue which gives the unique composition and description of 
       the homeopathic products amounting to brazen violation of Trade Marks Act 
       and also that of Copyright Act. It is submitted that copies Series A-1 to A-75 
       are confusingly and deceptively similar to that of the plaintiffs as merely 
       prefixing the letter “A” in place of letter “R” does not make them distinctive 
       from the R series of the plaintiffs. They allege that the use of exactly the 
       same numerals by the defendants for curing the same ailment, adopted by 
       the plaintiffs and further circulation of exact copied literature for A “ Series 
       is a calculated attempt to trade upon and cash on the plaintiff”s goodwill. 
       They further allege that the defendants” dishonesty is established by the fact 
       that since the homeopathic medicine of plaintiffs R-61 is not marketed in 
       India (although sold in other countries of the world), the defendants also 
       missed the medicine A-61 in their range, which is proof of blatant copying.  
        
       6. The Plaintiffs aver about the defendant”s malafide intention, evident from 
       the fact that the ailment cured by the defendants medicine labeled as A1 
       corresponds  to  the  ailment  in  relation  to  the  plaintiff”s  R1,  and  so  on. 
       Moreover, the mistakes committed by the plaintiff in spelling the description 
       of its medicine labeled as R 29 and R 47 is also identically copied by the 
       defendants  in  naming  its  medicines  labeled  as  A  29  and  A  47.  Further, 
       almost all names given by the defendants to its homeopathic medicines are 
       identical to the names given by the plaintiff in its products or in its literature 
       in the current edition.  
        
       7. The plaintiffs submitted a chart comparing the terms used by them and the 
       defendants  in  their  products  and  literature,  parts  of  which  are  extracted 
       below (“A” series being that of the defendants and “R” series being of the 
       plaintiff: Compilation of Medicines with Potencies Ailment Curative Effect 
       Compilation A1 Apis Mell, 4X, Bar. Chlor. 6X, Belladonna 4X, Calc. lod. 
       4X, Hepar Sulph 12X, Kali. Bich 4X, Teurium Marum Virum 6X, Mer. 
       Corr.  5X,  Phytolacca  4X  Inflammation  Drops  Acute  and  Chronic 
       inflammations. R1 Apis Mell, 4X, Bar. Chlor. 6X, Belladonna 4X, Calc. lod. 
       4S Marum verum 6X, Mer. Sub. Corr. 5X, Phytolacca 4X Inflammation 
       Drops  Local  Inflamations,  acture  and  chornic,  of  catarrhal  and  purulent 
       nature, with swelling of the glands. Sudden infections and high fever, with 
       irritations of the meninges, conjunctivas and pharynx. A4 Acidum Phos. 3X, 
       Baptisia  Tinctoria  4X,  Chamomilla  4X,  Chin.  Ars.  3X,  Colocynthis  6X 
       Ferrum Phos. 8X, Mer. Corr. 5X Oleander 6X, Rhus Tox. 4X, Veratrum 
       Album 6X Diarrhoea Drops Acute and chronic Gastro-colitis. R4 Acidum 
       Phos. 3X, Baptisia 4X Chamomilla 4X, Chin. Ars. 3 X Colocynthis 6X, 
       Ferrum  Phos,  8X  Mer.  Subl.  Corr.  5X,  Oleander  6X,  Rhus  Tox,l  4X, 
       Veratrum  Album  6X  Diarrhoea  Drops  Acute  and  chronic  gastro 
       “enterocolitis  of  all  types.  Summer  diarrhea  after  a  chill  or  faulty  diet. 
       Intestinal  catarrh,  intestinal  influenza,  diarrhea  with  fever,  abdominal 
       typhus,  paratyphus,  typhoid  fever,  dysentery.  A5  Anacardium  Occ.  6X, 
       Argentum Nit, 6X, Arsenicum Alb. 4X, Atropinum 6X, Carbo Veg. 8X, 
       Chamomilla 2X, Chelidonium Maj. 3X, Lycopodium 5X, Nux Vomica 4X, 
       Scrop.  Nod.  1X  Stomach  Drops  Acute  and  chronic  gastritis  Heartburn, 
       flatulence.  R5  Anacardium  6X,  Argentum  Nit,  6X,  Arsenicum  Alb.  4X, 
       Atropinum 6X, Carbo Veg. 8X, Chamomilla 2X, Chelidonium Maj. 3X, 
       Lycopodium  5X,  Nux  Vomica  4X,  Scrop.  Nod.  1X  Stomach  Drops 
       Especially  ulcus  parapyloricum.  Acute  and  chronic  gastritis,  dyspepsia, 
       chronic relapsing gastritis with or without ulceration. Heartburn, bad taste in 
       mouth,  frequent  belching,  flatulence  meteorism.  Acts  on  the  inflamed 
       mucosa of stomach, on the physiology of stomach. A6 Baptisia Tinctoria 
       4X, Bryonia Alba 4X, Camphora 3X, Causticum 6 X, Eucalyptus G. 3X 
       Eupatorium  Perf.  3X,  Ferrum  Phos.  8X,  Gelsemium  Sempervirens  6X, 
       Sabadilla  6X  Influenza  Drops  Especially  influenza  and  Acute  feverish 
       inflammations of the fibrous tissues. R6 Baptisia Tinctoria 4X, Bryonia Alba 
       4X, Camphora 3X, Causticum 6 X, Eucalyptus G. 3X Eupatorium Perf. 3X, 
       Ferrum  Phos.  8X,  Gelsemium  Sempervirens  6X,  Sabadilla  6X  Influenza 
       Drops  Specific  serous  remedy,  especially  influenza.  Acute  feverish 
       inflammations of the fibrous tissues and the serous membrances. General 
       infection with pain in the limps, sensation of prostr4ation, dull head-aches,