Delhi High Court vacates interim order passed against former employees of Plusplus Lifesciences in IP suit

The Delhi High Court recently vacated an interim order passed against makers of the pregnancy supplement Nutriepic and dienogest Uttercare in a suit by Plusplus Lifesciences. [Plusplus Lifesciences LLP & Anr. v. Dr Shiwani Singh and Ors.] .Plusplus Lifesciences had filed the suit against its former employees seeking, among other relief, directions to restrain the misuse of its confidential information, trade secrets, breach of contract and infringement of copyright, trademarks and passing off by the defendants.On August 22 this year, the High Court had passed an ex-parte ad interim injunction in favour of the plaintiffs restraining the defendants from manufacturing, selling, offering for sale, advertising or in any way dealing with their products Nutriepic and Uttercare.Justice Navin Chawla, however, held that there has been no misuse of confidential information by the defendants of the plaintiffs’ intellectual property rights. The Court also noted that the spring-board assertion against the defendants for being ex-employees of the plaintiff company does not hold true."The plaintiffs would, therefore, have to show that the information which is claimed to be confidential is of such nature that can be acquired by the defendants only because of their employment with the plaintiffs. Mere vague assertions of such information being related to sales and marketing plan and strategy developed, in my prima facie opinion, cannot suffice," the order stated..The defendants filed an application for the vacation of the ex-parte order. They argued that there was no violation of the Intellectual Property Rights (IPR) of the plaintiff as the medicine manufactured by the plaintiff was not based on any novel process, a fact which had also been noted in an interim communication of the Indian Patent Office to the plaintiff.Further, the defendants contended that the products of the plaintiff and the defendant were not identical and were, in fact, even registered under separate categories under the Food Safety and Standards Authority of India (FSSAI) Act. The Court's attention was also drawn to the fact that none of the marks of the plaintiff were registered and that there were objections to all their trademark applications, which had not been disclosed by the plaintiff in its pleadings..The Court noted that the plaintiff had concealed the fact that the Patent Office had not accepted their plea of the drug Trimacare being novel. This concealment itself was sufficient to deny ad-interim reliefs to the plaintiff, the Court recorded..Regarding the plaintiff’s claim of passing-off by and the similarity between the marks Layercare and Uttercare, the Court held that there was no similarity in the competing marks to cause deception or confusion amongst the consumers. "On the general principles of passing off, it is to be seen that the word ‘CARE’ is a generic word over which the plaintiffs cannot claim exclusiveness. The marks ‘LAYERCARE’ and ‘UTTERCARE’ also cannot be held to be visually or phonetically similar. The packaging of the two products, that is, of ‘LAYERCARE’ and ‘UTTERCARE’ is also entirely different and in my prima facie opinion, is sufficient to allay any claim of passing off," it added..On comparing the packaging, layout and other features of the marks of the respective products, the Court held that there are also other distinctive features which would put to rest any claim of deceptive similarity between the two marks. Therefore, it vacated the ex-parte ad-interim order passed in August. However, it directed the defendants to disclose on a bi-annual basis the sales made by them for their medicinal product ‘Nutriepic’..Advocates Rajeshwari H and Sugandh Shahi from Rajeshwari & Associates appeared for the plaintiffs.The defendants were represented by Senior Advocate Satvik Varma, who was instructed by Advocates Ehtesham Hashmi, Rajneesh Chuni and Akbar Siddique..[Read Order]