Delhi High Court - Orders
Zydus Wellness Products Limited vs Cipla Health Ltd & Anr on 3 October, 2023
Author: C.Hari Shankar
Bench: C.Hari Shankar
$~36
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CS(COMM) 115/2023 & I.A. 19039/2023
ZYDUS WELLNESS PRODUCTS LIMITED ..... Plaintiff
Through: Mr. Sanjeev Sindhwani, Sr.
Adv. with Mr. Sumit Wadhwa, Mr. Ayush
Samaddar and Ms. Vanshika Arora, Advs.
versus
CIPLA HEALTH LTD & ANR. ..... Defendants
Through: Ms. Archana Sahadeva, Mr.
Siddharth Raj and Ms. Brinda Nagaraj,
Advs.
CORAM:
HON'BLE MR. JUSTICE C.HARI SHANKAR
ORDER
% 03.10.2023 I.A. 19039/2023 [under Section 152 of the CPC]
1. Mr. Sindhwani, learned Senior Counsel for the plaintiff points out certain errors which have crept in paras 59.3 and 62.3 of my judgment dated 3 July 2023. The said paras read thus:
"59.3 Insofar as the comparisons between the marks "GLUCON- C" and "Gluco-C" or "GLUCON-D" and "Gluco-D" are concerned, it is ex facie apparent that the marks "Gluco-C" and "Gluco-D" are deceptively similar to the marks "GLUCON-C" and "GLUCON-D" respectively. The decision in Heinz would apply, mutatis mutandis, and on all fours, to the present case. In that case, the court was concerned with a comparison between the marks "GLUCON-D" and "Gluco-D". It was found that the two marks were deceptively similar. The same conclusion would necessarily follow when one compares the marks "GLUCON-D" vis-a-vis "Gluco-D" and "GLUCON-C" and vis-a-vis "Gluco-D"."
***** CS(COMM) 115/2023 Page 1 of 3 This is a digitally signed order.
The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 04/10/2023 at 22:15:56 "62.3 Mr. Lall submits, per contra, that the marks "GLUCON-C"
and "GLUCON-D" cannot be treated as descriptive. He submits that the mark "Glucon" is itself descriptive, as it has no etymological meaning. Moreover, he submits that the mere using of a hyphenated suffix "-C" or "-D" with "Glucon" would not invariably inform an unwary customer of average intelligence and imperfect recollection that the product contains Vitamin C or Vitamin D."
2. The decision in Heinz Italia v. Dabur India Ltd1 actually dealt with a comparison of the marks "GLUCON-D" and "Glucose-D", not "GLUCON-D" and "Gluco-D". The observation, in para 59.3, that, in Heinz1, the Court was concerned with a comparison between the marks "GLUCON-D" and "Gluco-D" is obviously, therefore, incorrect. Para 59.3 shall accordingly stand corrected to read thus:
"59.3 Insofar as the comparisons between the marks "GLUCON- C" and "Gluco-C" or "GLUCON-D" and "Gluco-D" are concerned, it is ex facie apparent that the marks "Gluco-C" and "Gluco-D" are deceptively similar to the marks "GLUCON-C" and "GLUCON-D" respectively. The decision in Heinz1 would apply, mutatis mutandis, and on all fours, to the present case. In that case, the court was concerned with a comparison between the marks "GLUCON-D" and "Glucose-D". It was found that the two marks were deceptively similar. The same conclusion would necessarily follow when one compares the marks "GLUCON-D" vis-a-vis "Gluco-D" and "GLUCON-C" and vis-a-vis "Gluco-D"."
3. Mr. Sindhwani also points out that, in para 62.3, the second sentence ought to read "He submits that the mark "Glucon" is not descriptive as it has no etymological meaning", instead of "He submits that the mark "Glucon" is itself descriptive, as it has no etymological meaning". Obviously, the submission is correct as, otherwise, the said sentence would be contradictory in terms. Accordingly, para 62.3 shall stand corrected to read thus:
1(2007) 6 SCC 1 CS(COMM) 115/2023 Page 2 of 3 This is a digitally signed order.
The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 04/10/2023 at 22:15:56 "62.3 Mr. Lall submits, per contra, that the marks "GLUCON-C"
and "GLUCON-D" cannot be treated as descriptive. He submits that the mark "Glucon" is not descriptive as it has no etymological meaning. Moreover, he submits that the mere using of a hyphenated suffix "-C" or "-D" with "Glucon" would not invariably inform an unwary customer of average intelligence and imperfect recollection that the product contains Vitamin C or Vitamin D."
4. I may observe that Ms. Archana Sahadeva, learned Counsel for the defendant/non-applicant agreed that paras 62.3 of the judgment did require correction but opposed the request for correction of para 59.3 of the judgment as she submits that, possibly, the Court was made to believe that the decision in Heinz1 involved a comparison of the marks "GLUCON-D" and "Gluco-D". The Court, while passing the judgment, has read the decision in Heinz1 and quoted part of the said decision. There is, therefore, no question of any erroneous impression having been conveyed to the Court. It is a plain and simple case of an inadvertent clerical/typographical mistake, while referring to the competing marks in Heinz1 which were "GLUCON-D" and "Glucose- D", not "GLUCON-D" and "Gluco-D".
5. As such, paras 59.3 and 62.3 of the judgment dated 3 July 2023 stand corrected accordingly.
6. This application is allowed.
C.HARI SHANKAR, J OCTOBER 3, 2023 ar CS(COMM) 115/2023 Page 3 of 3 This is a digitally signed order.
The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 04/10/2023 at 22:15:56