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JUDGMENT Shiv Narayan Dhingra, J.
Page 1940 IA No. 811/2004 in CS (OS) No. 112/2004
1. By this application under Order 39 Rules 1 and 2 CPC, plaintiff has sought interim injunction against the defendant that defendant be restrained from marketing/selling its product "NORFLOXACIN" in oval shape, orange colour tablets in blister packagings.
2. The case of the plaintiff is that plaintiff has been manufacturing "NORFLOXACIN" Tablets under trade name 'NORFLOX-400' and the plaintiff had been marketing these tablets in blister packing. Tablets of the plaintiff were having oval shape and orange colour.
3. It is not the case of the plaintiff that the defendant has copied the trade mark of the plaintiff and was marketing its tablets under the trade mark "NORFLOX400". It is undisputed that defendant was using generic name of medicine and was within its right to do so. The contention of the plaintiff is that copying of colour of the tablets, shape of the tablets and blister packaging was causing confusion in the minds of the consumers and the medicine of the plaintiff can be passed off as medicine of the defendant.
4. There is no dispute about the fact that the packing shape and colour of the tablets of the plaintiff as well as that of the defendant is similar. The question arises whether plaintiff is entitled to an injunction restraining defendant from marketing its medicine in oval shape orange colour tablets or packing in blister form of packagings. Blister form of packagings of tablets is common and prevalent packaging. It is used in almost for 50% of tablets in the market. Plaintiff can have no monopoly over the particular form of packaging and cannot pray that no one else should pack its medicinal tablets in blister form of packaging.
5. The next issue arises whether defendant can copy the colour of the plaintiff's tablets and shape of the plaintiff's tablets. It is settled law that there can be no monopoly over colours. The plaintiff is in the field of manufacturing a wide range of medicines. Plaintiff may colour its tables in any colour starting from violet to red. Merely because plaintiff has started using a particular colour for its tablets plaintiff does not get monopoly over colour so that no one else can use that colour. The medicines are not bought by colours by the customers. There are thousand types of tablets available with Chemist for different ailments. No one goes to a chemist and asks for red, blue, orange, peach or white colour of tablets. All medicines are purchased at the advise of Doctors and they are sold on prescription. Even those tablets readily available without prescription, are known by their names. You will not find any manufacturer advertising his tablets by colour or shape. Even the common brands Crocin, Anacin, Disprin, Coldarin etc. are sold by name and not by shape or colour of the tablets. It is preposterous to believe that a person would go to the Chemist and ask the Chemist to give him tablets of Page 1941 such and such colour for such and such ailments. Neither colour of the tablet can be associated with any brand. Similar is the case of the shape. Shape of the tablets is not associated either with the quality of the tablets or with the nature of medicine. Most of the tablets are made round, oval or cylindrical shape so that they are easy to swallow. It would be very hard to get tablets in the rectangular or square shape in the market unless they are chewing tablets or sucking tablets. It cannot be said that because the shape of the plaintiff tablets and defendant's tablets being oval, it was going to create confusion in the minds of the customers. The distinctiveness of the medicines is in the name and not in the colour and shape. Even if there has been deliberate copying of similar colour and shape of the plaintiff's tablets that would not amount to passing off, since colour and shape are not indicative of the drugs neither they are associated with the trade mark. There may be several other tablets of the similar shape and colour available in the market. I am supported in my above view by Rizla Limited v. Bryant and May Limited 1986 RPC 389; Smith, Kline and French Laboratories Ltd's Cinetidine Trade Mark (1991) RPC 17 Ch. D. Surya Roshni Limited v. Metalman Industries Limited 2001 PTC 777 (Del.); Colgate Palmolive Com. Limited and Anr. v. Patel and Anr. 2005 (31) PTC 583 (Del.).
6. I find no ground in this application. Application is hereby dismissed.