Delhi District Court
M/S Rockmed Pharma Pvt. Ltd. vs . M/S Nukind Healthcare & Anr. on 28 March, 2023
M/s Rockmed Pharma Pvt. Ltd. Vs. M/s Nukind Healthcare & Anr.
IN THE COURT OF ADDITIONAL DISTRICT JUDGE
02, SOUTH DISTRICT, SAKET COURTS COMPLEX,
NEW DELHI
Presiding Judge: Sh. Dinesh Kumar.
TM No. 21/2016
Filing No. 10183/2016
CNR No. DLST010004152016
In the matter of :
M/s Rockmed Pharma Pvt. Ltd.
K101, Upper Ground Floor, Lane - 5,
Abul Fazal Enclave, Jamia Nagar,
Okhla, New Delhi - 110025
...............Plaintiff
Versus
1. M/s Nukind Healthcare
2/13 DDA Market,
Dakshinpuri Extn, Sector - 5
Dr. Ambedkar Nagar,
New Delhi - 110062
Also At :
Level2, Prestige Omega,
No. 104, Epip Zone,
White Field, Bangalore - 560066
2. M/s SRS Industries
Khasra No. 101, Raipur.
Bhagwanpur, Roorkee,
TM No. 21/2016
CNR No. DLST010004152016
Page 1 of 55 Dinesh Kumar/ADJ02/South/Saket/ND/28.03.2023
M/s Rockmed Pharma Pvt. Ltd. Vs. M/s Nukind Healthcare & Anr.
Haridwar, Uttarakhand 247667
.............Defendants
Date of Institution : 15.03.2016
Date of reserving the judgment : 25.03.2023
Date of pronouncement : 28.03.2023
Decision : Suit Decreed.
SUIT UNDER SECTION 27 OF TRADE MARK ACT FOR
PERMANENT AND MANDATORY INJUNCTION
RESTRAINING PASSING OFF, DESTRUCTION OF
GOODS, RENDITION OF ACCOUNTS, PUNITIVE
DAMAGES ETC.
JUDGMENT
1. Vide this judgment, I shall dispose of the Suit filed by the plaintiff against the defendants. The brief facts of the case, as per the plaint, are as under: 1.1. M/s Rockmed Pharma Pvt. Ltd. is a company registered under the Companies Act 1956 having its registered office at K101, Upper Ground Floor, Lane5, Abul Fazal Enclave, Jamia Nagar, Okhla, New Delhi - 110025. Mr. Shahir Zaman is the promoter director of the plaintiff company. He is duly authorized by resolution passed in the meeting of board of directors of the plaintiff company and also well conversant with the facts and TM No. 21/2016 CNR No. DLST010004152016 Page 2 of 55 Dinesh Kumar/ADJ02/South/Saket/ND/28.03.2023 M/s Rockmed Pharma Pvt. Ltd. Vs. M/s Nukind Healthcare & Anr.
circumstances of the case. He is competent to file, institute and pursue the present suit on behalf of the plaintiff and do all other acts for the conduct of the present suit. The plaintiff company has also authorized Mr. Yashpal Arora, one of the directors of the plaintiff company. The partnership firm in the name of M/s Rockmed Pharma was constituted by Mr. Shahir Zaman and Mr. Yashpal Arora in the year 2006. The firm started trading in pharmaceutical products like soaps etc. Later on, the firm was converted into a company by way of acquisition of business by the plaintiff company in the year 2013.
1.2. The plaintiff company coined and adopted the Trademark 'KETOGOLD' and started working on it. It consulted many manufactures for production purpose. Finally, it entered into agreement for manufacturing with M/s Swisskem Healthcare, Khasra No. 77/3, Bathri, Tehsil Haroli, Distt. Una, U.P. This use of trademark came into circulation from 01.10.2013. On 29.03.2014, application for registration of trademark 'KETOGOLD' was made claiming to be user since October 2013.
1.3. The product under the trademark 'KETOGOLD' is a medicated soap used for beautification as well as for TM No. 21/2016 CNR No. DLST010004152016 Page 3 of 55 Dinesh Kumar/ADJ02/South/Saket/ND/28.03.2023 M/s Rockmed Pharma Pvt. Ltd. Vs. M/s Nukind Healthcare & Anr.
treatment of acne and the formula used in the soap is developed by the plaintiff based upon its experience in the field.
1.4. After adoption of the trade mark 'KETOGOLD' in the year 2013, the plaintiff company started using the trademark on extensive basis. The sale of the product under the said trademark witnessed increasing trend. The product under said trademark is one of the demanded product in the market and has considerable turnover running into lakhs of rupees witnessed year after year.
1.5. Due to association with the plaintiff, extensive advertisement and publicity, the trademark has acquired very good reputation in the market and the consumer, chemist and medical practitioners look upon the product with reliability. 'KETOGOLD' being a medicinal soap preparation for skin care, it has been widely accepted by the consumer, chemists and medical practitioners. 1.6. The plaintiff company started expanding its market territory and appointed many wholesellers and distributors for sale of the products. The product 'KETOGOLD' has substantial sales. The turnover of KETOGOLD is as follows:
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YEAR SALES (in
Rupees)
201415 6,44,109
2015 upto 10,83,052
20.02.2016
Estimates Sales from 4,85,200
21.02.2016 -
31.03.2016
1.7. The product under the trade mark 'KETOGOLD"
enjoys high degree of goodwill and reputation in the market. It is considered to be safe and reliable product which has shown good efficacy for treatment. The plaintiff is entitled to exclusive use of the trade mark 'KETOGOLD inter alia, on the following grounds:
a) First to coin the Trade Mark 'KETOGOLD'.
b) First to use the Trade Mark.
c) Continuous user of said trademark since adoption to till date.
d) Voluminous and extensive sale under the Trade Mark 'KETOGOLD'
e) Continuous demand from the customers and repeat purchases.
f) Availability of product in the various markets.TM No. 21/2016
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g) Extensive promotion of the product under trade market.
h) Goodwill and reputation of the trade mark.
i) Knowledge of the people.
j) Standard quality.
k) Application for Trade Mark.
1.8. The right of the Trademark is further governed by the goodwill and reputation which the plaintiff has achieved by use of the trademark 'KETOGOLD' on the product sold by it. KETOGOLD is the word having no dictionary meaning. The plaintiff is the exclusive user and owner of the trademark 'KETOGOLD' and it is not lawful for anybody else to use the trademark without leave and and license of the plaintiff. Any use of the contrary without leave or license of the plaintiff being prior user constitutes passing off under the provisions of Trade Marks Act 1999 and also constitute criminal offences within the meaning of Section 103 & 104 of the Trade Marks Act.
1.9. The defendant no. 1 M/s Nukind Healthcare seems to be a firm having its office at 2/13, LSC DDA Market, Sector - 5, Dakshinpuri Extn., Dr. Ambedkar Nagar, New Delhi - 110062 and also at Level - 2, Prestige Omega, No. TM No. 21/2016 CNR No. DLST010004152016 Page 6 of 55 Dinesh Kumar/ADJ02/South/Saket/ND/28.03.2023 M/s Rockmed Pharma Pvt. Ltd. Vs. M/s Nukind Healthcare & Anr.
104, EPIP Zone, Whitefield Bangalore - 560066. It has been marketing the product under the impugned identical trademark 'KETOGOLD' which is being manufactured by the defendant no. 2.
1.10. The defendant no. 2 M/s SRS Industries, Khasra No. 101, Raipur, Bhagwanpur, Roorkee, Uttarakhand - 247667 is a manufacturer firm and manufacturing the product under the impugned trademark KETOGOLD and supply the same to the defendant no. 1 for marketing. The defendant no. 2 has licensed premises from where the illegal activities of manufacturing the soap under the identical trademark is being carried on in spite of the knowledge of the right of the plaintiff.
1.11. Sometimes during the second week of March 2016, it came to the knowledge of the plaintiff that defendants were manufacturing and selling their pharmaceutical product under identical trademark 'KETOGOLD' and thus passing off their pharmaceutical product under the identical trademark 'KETOGOLD'. After coming to know the same, the plaintiff conducted detailed inquiry in which it came to know that the defendant no. 1 is engaged in marketing of the impugned TM No. 21/2016 CNR No. DLST010004152016 Page 7 of 55 Dinesh Kumar/ADJ02/South/Saket/ND/28.03.2023 M/s Rockmed Pharma Pvt. Ltd. Vs. M/s Nukind Healthcare & Anr.
product under identical trademark 'KETOGOLD' and the defendant no. 2 is manufacturing the impugned product. 1.12. The packaging of the defendants' products show that the defendant no. 1 is marketing the product and defendant no. 2 is engaged in manufacturing of the impugned product KETOGOLD. The addresses of the defendants are given on the impugned packaging with trademark KETOGOLD. The defendants knowingly have started using the impugned trademark 'KETOGOLD' which is identical to the trademark of the plaintiff in order to trade upon the goodwill and reputation of the plaintiff trade mark.
1.13. The defendants are making efforts to pass off their products as products of the plaintiff and selling their products from the same counter / chemist shop where the plaintiff's products are available.
1.14. The plaintiff has already filed the trademark application with the trademark registry. A sample search from the trademark registry would reveal the details of the plaintiff's adoption of said trademark KETOGOLD since 2013. The defendants, besides other places, are selling the impugned product at M/s Shivam Medicos, Shop No. 3, TM No. 21/2016 CNR No. DLST010004152016 Page 8 of 55 Dinesh Kumar/ADJ02/South/Saket/ND/28.03.2023 M/s Rockmed Pharma Pvt. Ltd. Vs. M/s Nukind Healthcare & Anr.
Plot No. 144A, Madangir, Near L.S.C. Market, New Delhi
- 110062 which has issued bills towards purchasing of impugned product vide Invoice No. 1151 dated 11.03.2016. At the same chemist shop, the plaintiff product KETOGOLD is also available and sold.
1.15. The act of the defendants is deliberate and intentional. There is no reason why the trademark 'KETOGOLD' was adopted as close as the 'KETOGOLD'. It is adopted only to destroy the market of the plaintiff and to substitute the product in place of the plaintiff's 'KETOGOLD'. The defendants are creating confusion and deception in the minds of prescribing doctors as well as chemist. The defendants have not only adopted identical trademark but also introduced the mark with identical composition (ketokonazole) 75 grams soap medicated soap so that maximum substitution can be done by passing off the defendants' products as products of the plaintiff.
1.16. The plaintiff is the owner of trademark 'KETOGOLD' and the defendants are using the identical trademark KETOGOLD which is also phonetically and visually similar having the identical composition with TM No. 21/2016 CNR No. DLST010004152016 Page 9 of 55 Dinesh Kumar/ADJ02/South/Saket/ND/28.03.2023 M/s Rockmed Pharma Pvt. Ltd. Vs. M/s Nukind Healthcare & Anr.
similar use for skin care. When the trademarks are identical, it is impossible to avoid or eliminate confusion by any degree of precaution. In such cases, even if, the pharmacists who are well equipped and prescribing doctors after prescribing the medicine under trademark 'KETOGOLD' could never know that the defendants' product is being passed off for the plaintiff's one as both trademark are identical.
1.17. The prescriptions of the doctors contain the brand name of the product and in such circumstances, it is quite possible that the dispensing chemist would pass off the defendants' product in place of plaintiff's product. It is not the mistake of the doctor and chemist but due to the adoption of identical trademark by the defendants with malafide intention to earn and ride up on the goodwill and reputation of the trademark KETOGOLD earned by the plaintiff. It is the innocent consumer who will be the sufferer. The plaintiff's product KETOGOLD contains its ingredient / composition KETOCONAZOLE I.P 2% whereas the defendant product KETOGOLD contains KETOCONAZOLE I.P. 1% which clearly shows the defendant is selling the inferior product to consumers. The TM No. 21/2016 CNR No. DLST010004152016 Page 10 of 55 Dinesh Kumar/ADJ02/South/Saket/ND/28.03.2023 M/s Rockmed Pharma Pvt. Ltd. Vs. M/s Nukind Healthcare & Anr.
doctors / medical practitioner who prescribe the products are in an impression that the product of plaintiff KETOGOLD contains 2 % Ketoconazole, however, the patient is getting inferior product of the defendant that has different chemical composition which may cause in various effects in relation to treatment and healthcare. 1.18. The present action is based upon the principal of passing off and the plaintiff has the right to remedy as per the provision of the Act. The defendants are intentionally and knowingly bent upon passing off their product under the impugned identical trade mark 'KETOGOLD' of the plaintiff and passing off their goods as that of the goods of the plaintiff. The defendants are targeting the same market and customers to reap benefit from the goodwill and reputation of the plaintiff much coveted trade mark 'KETOGOLD'. The defendants are engaged in illegal trade and few unscrupulous chemist and other people are also involved. Such misrepresentation is calculated to cause damage and injury both to the plaintiff's business and to their goodwill and reputation. The plaintiff's trademark enjoys tremendous trust and confidence of the members of the public and consumers and as such, the plaintiff is TM No. 21/2016 CNR No. DLST010004152016 Page 11 of 55 Dinesh Kumar/ADJ02/South/Saket/ND/28.03.2023 M/s Rockmed Pharma Pvt. Ltd. Vs. M/s Nukind Healthcare & Anr.
entitled to protection of the trademark KETOGOLD. The defendants are gaining unfair advantage, indulging in unfair practice and the same amounts to the fraction invasion on the plaintiff's valuable intellectual property rights by the defendant. The defendants are dealing and promoting the spurious goods under trademark 'KETOGOLD' thereby they are encashing upon the goodwill and reputation of the plaintiff. The plaintiff fears for serious repercussions on his business for their product under the trademark 'KETOGOLD'.
1.19. There is no scope of confusion and mistake on the part of chemist / pharmacist as one can only read the prescription and dispense the medicine / product for prescription items prescribed by the Doctor. The product being a medicinal product, care should be taken strictly, as besides commercial interest; the interest of public is of paramount importance. The confusion or mistake in filing a prescription for either product could produce harmful effects. The trademark adopted by the defendants are identical and will have disastrous consequences. It is equitable that the defendants be restrained from using the impugned trade mark 'KETOGOLD'. Apart from passing TM No. 21/2016 CNR No. DLST010004152016 Page 12 of 55 Dinesh Kumar/ADJ02/South/Saket/ND/28.03.2023 M/s Rockmed Pharma Pvt. Ltd. Vs. M/s Nukind Healthcare & Anr.
off the trademark of the plaintiff, the defendants are also liable to be prosecuted for committing of criminal offences under the Trade Marks Act 1999, the Indian Penal Code 1860. The sale of drug by subsequent manufacturer under identical or resembling name is termed as spurious drug and constitutes criminal offence under the Drugs and Cosmetics Act, 1940.
1.20. The plaintiff has suffered irreparable loss / damages which is difficult to evaluate. The defendants may be ordered and decreed to render a true and faithful account of all the profits made by the defendants by selling the medicinal preparation under impugned trademark 'KETOGOLD'. The defendant need to disclose the total purchases and sales made by them from their sales tax records. The plaintiff is entitled to the punitive damages as prayed in the suit. The defendants have deliberately, mischievously and with full knowledge of proprietary rights of the plaintiff has started using the impugned trademark 'KETOGOLD' who is blatant passing off activity in common law and statutory right of the plaintiff. In case of repeat purchases, the confusion and deception cannot be ruled out being the impugned trademark are TM No. 21/2016 CNR No. DLST010004152016 Page 13 of 55 Dinesh Kumar/ADJ02/South/Saket/ND/28.03.2023 M/s Rockmed Pharma Pvt. Ltd. Vs. M/s Nukind Healthcare & Anr.
identical. For public interest, the defendants should be urgently restrained from using the identical trade mark. 1.21. The act of violation committed by the defendants irreparable in nature and will have cascading affect on the business. The cause of action to institute the present suit arose in second week of March 2016 when the plaintiff came to know that the defendants were manufacturing and marketing impugned products under trademark 'KETOGOLD'. Cause of action still subsists and continues. This Court has jurisdiction to entertain and try the present suit. The sale is made through various chemist and medical stores situated within the jurisdiction of this Court. The plaintiff has filed the suit within the prescribed period of limitation as there is continuous passing off and there is no delay in filing of the present suit. Hence, the present suit has been filed with the following prayer :
a) Decree of perpetual injunction restraining the defendants, their proprietors, partners, directors and every person in charge of and for the conduct of the business and each of them whether by themselves or by their servants, agents, dealers, stockiest, associates, subsidiary concern or TM No. 21/2016 CNR No. DLST010004152016 Page 14 of 55 Dinesh Kumar/ADJ02/South/Saket/ND/28.03.2023 M/s Rockmed Pharma Pvt. Ltd. Vs. M/s Nukind Healthcare & Anr.
otherwise howsoever from passing off their goods as that of the plaintiff by using the impugned identical trade mark 'KETOGOLD' with any prefix or suffix and / or any phonetically and visually similar trade mark as that of the plaintiff's trade mark 'KETOGOLD'.
b) Delivery up for destruction of all impugned copies under the custody of the defendants, their proprietors, partners, directors and every person in charge of and for the conduct of the business of the Defendants and also the order for destruction of the impugned product under the custody of each of them whether by themselves or by their servants, agents, dealers, stockiest, or otherwise or any of them.
c) For an order directing the defendants for rendition of account to assess the profit made by them by use of impugned trade mark and submission of all purchase and sales records by the defendants along with the stock statement so as to assess the profit made by them.
d) For punitive damages of Rs. 3,00,000/.
e) Costs.
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f) For such further relief/reliefs to which the plaintiff may be entitled looking into the facts and circumstances of the case.
2. Vide order dated 17.03.2016, summons were directed to be issued to the defendants. The defendants entered their appearance through counsel on 12.04.2016. The Written Statement has been filed on behalf of both the defendants. Ld. Predecessor vide order dated 04.06.2016 took note that the Written Statement did not accompany any authority letter on behalf of the defendant no. 2 in favour of the author of the WS and the Written Statement was treated for defendant no. 1 only. The defendant no. 2 had not appeared on various dates, thereby the defendant no. 2 was proceeded exparte vide order dated 01.07.2017. Vide order dated 04.06.2016, an interim injunction was granted in favour of the plaintiff and against the defendants. The defendant no. 1 has filed the WS. In the Written Statement, the defendant no. 1 has stated as under :
2.1. The present suit filed by the plaintiff is vexatious, frivolous, malafide and is devoid of any merit and deserves dismissal at the outset. The plaintiff has concealed material facts from this Court and the present suit is nothing but an abuse of process of law and should be dismissed with TM No. 21/2016 CNR No. DLST010004152016 Page 16 of 55 Dinesh Kumar/ADJ02/South/Saket/ND/28.03.2023 M/s Rockmed Pharma Pvt. Ltd. Vs. M/s Nukind Healthcare & Anr.
punitive costs. The present suit is filed just to eliminate competition from the market as the defendants and their products are gaining goodwill and reputation for the high quality products.
2.2. The word 'KETOGOLD' being a common / generic words in the line of medicinal preparation cannot be subjected to monopoly by the plaintiff. All business entities are entitled to use the word 'KETOGOLD' with the different packaging / trade dress so as to distinguish its goods and services from others. The trademark 'KETOGOLD' is honestly adopted by the defendant in the year 2015 and wholly dissimilar with the plaintiff's trademark. The defendants are active players in the market. The plaintiff never objected to the adoption and use of the trade mark / label / trade name 'KETOGOLD' by the defendants for its goods since 2015 and has rather acquiesced to the use of such word in the business of the defendants, it cannot be allowed to raise this plea at this stage.
2.3. KETOGOLD is a combination of the words KETO and GOLD and it is used to treat a fungal infection of the skin containing the salt ketoconazole which word is used in TM No. 21/2016 CNR No. DLST010004152016 Page 17 of 55 Dinesh Kumar/ADJ02/South/Saket/ND/28.03.2023 M/s Rockmed Pharma Pvt. Ltd. Vs. M/s Nukind Healthcare & Anr.
its short form 'KETO' and Gold is used to signify the glow in the skin after its use. The plaintiff cannot claim proprietary rights in a generic mark which is publici juris. In the trade of drugs it is common practice to name a drug by the name of the salt / organ or ailment which it treats or the main ingredient of the drug.
2.4. The plaintiff is trying to throttle the defendants from continuing their honest and legitimate commercial practice due to its fear of stiff competition. The defendants are law abiding and honest traders and never had any intention or will to misuse the goodwill of the plaintiff for their own sales. The defendants' adoption of the trade mark 'KETOGOLD' is honest, concurrent, bonafide in good faith and done without understanding the ramifications of such adoption since the defendants do not indulge in unethical and unfair trade practices.
2.5. The word 'KETOGOLD' being a common / generic words in the line of medicinal preparation cannot be the subject of monopoly by the plaintiff alone. All business entities are entitled to use the word 'KETOGOLD' with different packaging / trade dress so as to distinguish its goods and services from that of others. In TM No. 21/2016 CNR No. DLST010004152016 Page 18 of 55 Dinesh Kumar/ADJ02/South/Saket/ND/28.03.2023 M/s Rockmed Pharma Pvt. Ltd. Vs. M/s Nukind Healthcare & Anr.
the trade of drugs, it is common practice to name a drug by the name of the salt, organ and ailment.
2.6. The plaintiff's application for registration of the trademark is already under the objection by the Registrar. Registrar has already raised an objection to the mark of the plaintiff. Reply to an examination report has to be mandatorily filed within 1 month of the date of receipt of the same, otherwise, the application is treated as abundant. As per the online records of Trade Marks Registry, the examination report was issued to plaintiff on 27.05.2015 and its reply was filed by the plaintiff on 12.02.2016 i.e. after 9 months. The said application should have been treated as 'abandoned' by the Registrar. Thus, the title of the plaintiff is defective and it is not entitled to any right in the said trade mark. The defendants adopted the trade mark in beginning of the year 2015 and started using it thereafter. The defendants are active players in the market and had regularly advertising its products in various medical journals and magazines.
2.7. The packaging, trade dress and labeling of the defendants' products is easily distinguishable from the plaintiff's products. Thus, there is no scope of confusion TM No. 21/2016 CNR No. DLST010004152016 Page 19 of 55 Dinesh Kumar/ADJ02/South/Saket/ND/28.03.2023 M/s Rockmed Pharma Pvt. Ltd. Vs. M/s Nukind Healthcare & Anr.
between the two. Both the products are easily distinguishable even to a prudent man of average intelligence. All the products of the defendants under the impugned mark are manufactured and distributed under strict quality control, using highly sophisticated and specialized skill, technology, plant and machinery to ensure that the quality for which the defendants are known for is maintained. The plaintiff is trying to further its case without any evidence or corroboration in its support and has made wild and bald allegations.
2.8. The plaintiff cannot claim proprietary rights in a generic mark which is publici juris. The term 'KETOGOLD' is a combination of two words KETO and GOLD. The mark is the generic and open to use by anyone dealing in ketoconazole soap for treatment of fungal infection of the skin. The plaintiff is wrongly trying to assert its exclusive rights in a mark which cannot be the property of a single entity.
2.9. The defendants are reputed traders and business entities who are in the business of pharmaceuticals and medicinal preparations since the last many years and in no manner dependent on the plaintiff to further business and TM No. 21/2016 CNR No. DLST010004152016 Page 20 of 55 Dinesh Kumar/ADJ02/South/Saket/ND/28.03.2023 M/s Rockmed Pharma Pvt. Ltd. Vs. M/s Nukind Healthcare & Anr.
to increase their sales. The defendants have clearly and evidently displayed on all their packaging the manufacturer and the marketer's name and address so to enable all its customers and traders to know the source of origin of the defendants' products. It is prayed that the suit of the plaintiff is liable to be dismissed with exemplary costs in favour of the defendants.
3. The plaintiff has filed replication. The plaintiff reiterated the facts stated in its plaint. The plaintiff also filed an application under Order XXXIX Rule 1 & 2 CPC along with the plaint. The application was allowed vide detailed order dated 04.06.2016.
4. On the basis of the pleadings, following issues have been framed vide order dated 01.09.2016 :
1. Whether the plaint is signed and verified by a competent and duly authorized person and plaint has been instituted properly? OPP 2(a). Whether the suit is without cause of action, as word 'KETOGOLD' is derived from salt 'KETOCONAZOLE', which is public juris, if so, its consequences? OPD TM No. 21/2016 CNR No. DLST010004152016 Page 21 of 55 Dinesh Kumar/ADJ02/South/Saket/ND/28.03.2023 M/s Rockmed Pharma Pvt. Ltd. Vs. M/s Nukind Healthcare & Anr.
2(b). Whether the defendant has adopted the trademark 'KETOGOLD' under good faith, honesty and bonafide, if so, its consequences? OPD 3(a). Whether the plaintiff is proprietor of trademark 'KETOGOLD' and also senior user than the defendant? Burden of proof on plaintiff. 3(b). Whether the defendant has been passing off plaintiff's product under the identical trademark 'KETOGOLD' of plaintiff? Burden of proof on plaintiff.
4. Whether the plaintiff is entitled for decree of perpetual injunction against the defendant in respect of its trademark 'KETOGOLD', as per paragraph 45 (a) of the plaint? Burden of proof on plaintiff.
5. Whether the plaintiff is entitled for decree of mandatory injunction / delivery up of destruction of copies under the custody of defendant, against the defendant in respect of its trademark TM No. 21/2016 CNR No. DLST010004152016 Page 22 of 55 Dinesh Kumar/ADJ02/South/Saket/ND/28.03.2023 M/s Rockmed Pharma Pvt. Ltd. Vs. M/s Nukind Healthcare & Anr.
'KETOGOLD', as per paragraph 45(b) of the plaint? Burden of proof on plaintiff.
6. Whether the plaintiff is entitled for rendition of accounts as per paragraph 45(c) of the plaint, against the defendant? Burden of proof on plaintiff.
7. Whether the plaintiff is entitled for punitive damages of Rs. 3 lacs against the defendant, as per paragraph 45(d) of the plaint? Burden of proof on plaintiff.
8. Relief.
5. The plaintiff was asked to lead evidence. The plaintiff examined Sh. Yashpal Arora as PW1 in order to prove its case. The witness tendered his evidence by way of affidavit Ex.PW1/A. He has reiterated the facts stated in the plaint. He has relied upon the following documents :
a) Board resolution of the company : Ex. PW1/1.
b) Memorandum of Article of Association of the Company : Ex. PW1/2.
c) CA Certificate : Ex. PW1/6.
d) Purchase bills : Ex. PW1/7 (Colly).TM No. 21/2016
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e) Original purchase bill of the product of the plaintiff (Tax Invoices) : Ex. PW1/8.
f) Plaintiff product packaging : Ex. PW1/11.
g) Defendant product packaging : Ex. PW1/12.
h) Certificate u/s 65B of Evidence Act dated 20.09.2018 : Ex. PW1/13.
6. The defendant no. 1 failed to cross examine the witness despite opportunities. Therefore, the opportunity to cross examine the witness was closed vide order dated 21.01.2019. PE was closed vide order dated 21.01.2019. The matter was fixed for defendant evidence.
7. The defendant no. 1 was asked to lead evidence. The defendant no. 1 examined Sh. Anuj Kukreja as DW1. He has tendered his evidence by way of affidavit Ex. D1. He has relied upon the copy of board resolution of the defendant as Ex. D2 (OSR). The witness was cross examined and discharged.
8. The defendant no. 1 did not examine any other witness. Vide separate statement of Ld. Counsel for the defendant no. 1, DE was closed vide order dated 14.02.2020 and the matter was fixed for final arguments.
9. Ld. Counsel for the plaintiff would argue that the plaintiff company M/s Rockmed Pharma Pvt. Ltd. is dealing TM No. 21/2016 CNR No. DLST010004152016 Page 24 of 55 Dinesh Kumar/ADJ02/South/Saket/ND/28.03.2023 M/s Rockmed Pharma Pvt. Ltd. Vs. M/s Nukind Healthcare & Anr.
with sales and marketing of various pharmaceuticals and medicinal products. The trademark was adopted in the year 2013. The application for registration of the trademark was filed on 29.03.2014, claiming user since October 2013 and the same was registered in favour of the plaintiff. The trademark KETOGOLD is registered trademark of the plaintiff and valid and subsisting vide trade mark no. 2709347 w.e.f. 29.03.2014. It is further argued that the plaintiff is continuously selling and marketing the said medicinal preparation being a 'medicated skin care soap' with 'Ketoconazole' as active pharmaceutical ingredient (API). This product is being used and recommended for variety of skin related disorders and cure. The sale turnover for 2014 to 2016 was recorded at Rs. 22.12 Lakhs and by 2020, it has grown manyfold. The plaintiff is first to adopt and user of the trademark KETOGOLD and by reason of registration of the trademark, the plaintiff have exclusive right to use of the said trademark. The said mark of the plaintiff qualifies a distinction as the mark do not have any obvious or dictionary meaning and exclusively coined and distinctive trademark. It is further argued that the defendant no. 2 through their employee Sh. Ashwin appeared before this Court and got recorded his statement before the Court that defendant no. 2 were TM No. 21/2016 CNR No. DLST010004152016 Page 25 of 55 Dinesh Kumar/ADJ02/South/Saket/ND/28.03.2023 M/s Rockmed Pharma Pvt. Ltd. Vs. M/s Nukind Healthcare & Anr.
manufacturing the medicinal product under impugned mark KETOGOLD for the defendant no. 1 and after the court notice, they have stopped manufacturing the medicines under impugned trademark KETOGOLD. The defendant no. 2 made a statement that they are not going to contest the suit. It is further argued that the plaintiff M/s Shivam Medicos one of the dealers of the defendant No.1 at shop No. 3, plot No. 144A, Madangir, near L.S.C. Market, New Delhi62 is engaged in selling the impugned goods under trademark KETOGOLD and passing off the medicinal preparation under the impugned Trademark KETOGOLD. The adoption of trademark KETOGOLD the defendants were malafide and dishonest and by using the identical name for identical product the defendants wanted to ride upon the goodwill and reputation associated with the plaintiff's trademark and wanted to earn by substituting the products of the plaintiff from their products. It is further argued that by reason of coined, distinctive trademark and prior adopter and user, the plaintiff have exclusive right over the trademark KETOGOLD and that the defendants using the identical trademark KETOGOLD and capable of creating confusion of deception in the mind of public and trade. The act of defendants clearly shows that they have prior knowledge of TM No. 21/2016 CNR No. DLST010004152016 Page 26 of 55 Dinesh Kumar/ADJ02/South/Saket/ND/28.03.2023 M/s Rockmed Pharma Pvt. Ltd. Vs. M/s Nukind Healthcare & Anr.
trademark KETOGOLD. The defendants are marketing and selling their goods and identical trademark which creates impression that the goods marketed by the defendants is of plaintiff and if plaintiff have either permitted the trademark or sold the trademark to the defendant. Such impression creates confusion and deception in the mind of prescribing Doctors as well as dispensing Chemist. It is not the case of the defendants that they are not aware of the plaintiff's right, but has fraudulent intent to trade upon goodwill and reputation and to wipe out plaintiff's business. The defendant by adopting and using identical trade mark is obtaining unfair advantage, indulging in unfair practice. When the trademarks are identical it is impossible to avoid or eliminate confusion by any degree of precaution. In the present case the comparative marks are identical and the goods are also identical pharmaceutical preparations. It is further argued that the defendant put their defense mainly on the ground that the trademark KETOGOLD is a descriptive mark and generic in nature and hence should not be given protection. However, the trademark KETOGOLD is a coined, distinctive term and do not have any obvious and dictionary meaning and cannot be terms as generic term. The trademark of the plaintiff is a distinctive term and is a registered TM No. 21/2016 CNR No. DLST010004152016 Page 27 of 55 Dinesh Kumar/ADJ02/South/Saket/ND/28.03.2023 M/s Rockmed Pharma Pvt. Ltd. Vs. M/s Nukind Healthcare & Anr.
trademark. Further plaintiff's trademark is exclusively a distinguished and coined trademark. The submission of the defendants are baseless and without any substances. Hence, it is prayed that the suit may be decreed. Ld. Counsel for the plaintiff has relied upon the following judgments :
"Cadila Healthcare Ltd. Vs. Cadila Pharmaceuticals Ltd.
"Ruston & Amp; Hornsby Ltd. Vs. The Zamindara Engineering Co. MANU/SC/0304/1969 "Midas Hygiene Industries P.Ltd. & Ors. Vs. Sudhir Bhatia & Ors. MANU/SC/0186/2004.
"Revlon Inc. & Ors. Vs. Sarita Manufacturing Co. MANU/DE/0823/1997"
10. Ld. Counsel for the defendant, on the other hand, would argue that there are no merits in the suit of the plaintiff and it is liable to be dismissed. Ld. Counsel for the defendant would argue that the word KETOGOLD is a common generic word. It is made of the word ketoconazole which is a drug used to treat fungal infection of the skin while the word GOLD is used to signify the glow in the skin after use. The plaintiff cannot claim exclusive right to use the said word as it has become publici juris. The defendant has been using the said word for marketing its product honestly since the beginning of the year 2015. The use of the word by the defendant is honest and legitimate. The defendant has used the word in good faith as there was no registered trade mark shown to be registered in TM No. 21/2016 CNR No. DLST010004152016 Page 28 of 55 Dinesh Kumar/ADJ02/South/Saket/ND/28.03.2023 M/s Rockmed Pharma Pvt. Ltd. Vs. M/s Nukind Healthcare & Anr.
the said name. In any case, the defendant's label, packaging and trade dress is wholly different from that of the plaintiff's. The suit of the plaintiff does not satisfy the conditions of law in a matter for passing off. The price difference between the two products is significantly high since the product of the defendant is priced at Rs. 65/ while the product of the plaintiff is available in various capacities at the price of Rs. 140/. If the price segment is not sensitive to 100 % difference then where is the need for plaintiff to launch its product for Rs. 140/. The defendant's adoption of the trademark is honest, concurrent, bonafide, in good faith and done without understanding. The ramifications of such adoption since the defendants do not indulge in unethical and unfair trade practices. Hence, it is prayed that the suit may be dismissed. Ld. Counsel for the defendant has relied upon the following judgments in support of his arguments :
"1. Rhizome Distilleries Pvt. Ltd. & Ors. Vs. Pernod Ricard S.A. France & Ors. (2010) 42 PTC 806.' "2. Marico Ltd. Vs. Agro Tech Foods Ltd. 2011 (1) RAJ 558 (DEL) "3. Scherin Corporation & Ors. Vs. Alkem Laboratories (2010) 42 PTC 772 "4. Khoday Distilleries Ltd. Vs. The Scotch Whiskey Association & Ors. (2008) 10 SCC 723.TM No. 21/2016
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"5. J.R Kapoor Vs. Micronix India 1994 Supp (3) SCC 215. "6. Astrazeneca U.K. Ltd. & Anr. Vs. Orchid Chemicals & Anr. 2007 (34) PTC 469 DEL.
"7. Shelke Beverages Pvt. Ltd. Vs. Rasik Lal Manik Chand Dhariwal 2010 (112) BOM 1479.
"8. F. Hoffman Roche Vs. Geoffrey AIR 1970 SC 2062 "9. Rich Products Corporation Vs. Indo Nippon Food Ltd. 2010 (42) PTC 660 DEL.
"10. Khandelwal Laboratories Ltd. Vs. F.D.C. Ltd. 2001 (4) RAJ 197 DEL."
11. I have heard the submission of Ld. Counsel for the parties and gone through the material on record. My issue wise findings are as under:
12. Issue No. 1: This issue reads as under :
"Whether the plaint is signed and verified by a competent and duly authorized person and plaint has been instituted properly? OPP"
13. The onus to prove this issue was on the plaintiff. No arguments have been advanced on behalf of any of the party on this issue. It is also noteworthy that the PW1 was not cross examined on behalf of the defendants despite several opportunities. Therefore, his testimony has remained unrebutted.
14. The Plaintiff has examined the PW1 to prove the issue The PW1 would depose that he is the promoter director of the plaintiff company. He has also relied upon the extract of the board resolution in his favour which is Ex.PW1/1, and the copy TM No. 21/2016 CNR No. DLST010004152016 Page 30 of 55 Dinesh Kumar/ADJ02/South/Saket/ND/28.03.2023 M/s Rockmed Pharma Pvt. Ltd. Vs. M/s Nukind Healthcare & Anr.
of the Memorendum and Article of Association of the plaintiff company which is Ex.PW1/2. Vide Ex. PW1/1 Mr. Yashpal Arora has been authorised by the board of directors of the plaintiff company to institute/defend legal proceedings on behalf of the plaintiff. He is also authorised to depose on behalf of the plaintiff.
15. The testimony of the PW1 has remained unrebutted. The documents Ex.PW1/1 and Ex.PW1/2 have also been proved as per law because no objection has been taken by the defendant in relation to mode of proof while they were tendered in evidence. These documents are sufficient to prove on the preponderance of probabilities that the plaint is signed and verified by a competent and duly authorized person and the plaint has been instituted properly. The issue is accordingly decided in favour of the plaintiff.
16. Issue no. 2 & 3 These issues are taken up together as they require common discussion and to avoid repetition while deciding these issues. The issues read as under:
"2(a). Whether the suit is without cause of action, as word 'KETOGOLD' is derived from salt 'KETOCONAZOLE', which is public juris, if so, its consequences? OPD "2(b). Whether the defendant has adopted the trademark 'KETOGOLD' under good TM No. 21/2016 CNR No. DLST010004152016 Page 31 of 55 Dinesh Kumar/ADJ02/South/Saket/ND/28.03.2023 M/s Rockmed Pharma Pvt. Ltd. Vs. M/s Nukind Healthcare & Anr.
faith, honesty and bonafide, if so, its consequences?OPD "3(a). Whether the plaintiff is proprietor of trademark 'KETOGOLD' and also senior user than the defendant? Burden of proof on plaintiff.
"3(b). Whether the defendant has been passing off plaintiff's product under the identical trademark 'KETOGOLD' of plaintiff? Burden of proof on plaintiff."
17. The entire basis of the tort of passing off is that the law does not permit any one to carry on his business in such a way as would persuade the customers or clients in believing that the goods or services belonging to someone else are his or are associated therewith. Perusal of the record would show that both the parties have been using the identical word mark 'KETOGOLD'. Thus, this is not a case where the Court is required to decide whether there is a confusing or deceptive similarity between the two marks or not.
18. The plaintiff has claimed that it has been using the trademark KETOGOLD w.e.f. 01.10.2013. The plaintiff has also averred that it had applied for registration of the trade mark on 29.03.2014. The plaintiff has also relied upon the invoices Ex. PW1/8 (colly) which show the sale of the product KETOGOLD soap by the plaintiff since 10.05.2014. Further, TM No. 21/2016 CNR No. DLST010004152016 Page 32 of 55 Dinesh Kumar/ADJ02/South/Saket/ND/28.03.2023 M/s Rockmed Pharma Pvt. Ltd. Vs. M/s Nukind Healthcare & Anr.
the plaintiff has also filed the certificate of Chartered Accountant Ex.PW1/6 to show that it had sold the item KETOGOLD soap during the financial year 201415 and 2015
16. These statements have remained unrebutted.
19. The defendant, on the other hand, has claimed that it is using the mark KETOGOLD since 2015. The defendant has not brought its sales records in evidence. In any case, it stands proved on the preponderance of probabilities that the plaintiff is the proprietor and senior user of the trademark in question i.e KETOGOLD.
20. The defendant has taken the defence that word KETOGOLD is derived from word ketoconazole which is publici juris and therefore, the plaintiff does not have any cause of action. I have considered the submission. However, I do not find merits in the same. No doubt, part of the trademark i.e. KETO is derived from the salt ketoconazole. However, it is coined with the word GOLD. Thus, word 'KETOGOLD' becomes a coined word and thus distinctive. The defendant has not brought anything on record to show that the word KETOGOLD is a generic term and thus publici juris.
21. At the time of institution of the present suit, the trademark of the plaintiff was not a registered trade mark. In the TM No. 21/2016 CNR No. DLST010004152016 Page 33 of 55 Dinesh Kumar/ADJ02/South/Saket/ND/28.03.2023 M/s Rockmed Pharma Pvt. Ltd. Vs. M/s Nukind Healthcare & Anr.
case of unregistered trade mark, Section 27(1) provides that no person shall be entitled to institute any proceeding to prevent, or to recover damages for, the infringement of an unregistered trade mark. Subsection (2) of Section 27, however, provides that the Act shall not be deemed to affect rights of action against any person for passing off goods as the goods of another person or the remedies in respect thereof. Thus, in the case of unregistered trade marks, a passing off action is maintainable. The passing off action depends upon the principle that nobody has a right to represent his goods as the goods of some body. In other words a man is not to sell his goods or services under the pretence that they are those of another person. Hon'ble Supreme Court of India in Cadila Healthcare Limited vs Cadila Pharmaceuticals Limited AIR 2001 SC 1952 has discussed the points to be considered while deciding an action for passing off. It has held as under:
"10.... Lord Diplock in Erwen Warnink BV Vs. J Townend & Sons, 1979(2) AER 927, has held that the modern tort of passing off has five elements i.e. (1) a misrepresentation (2) made by a trader in the course of trade, (3) to prospective customers of his or ultimate consumers of goods or services supplied by him, (4) which is calculated to injure the business or goodwill of another trader (in the sense that this is a reasonably foreseeable consequence) and (5) which causes actual damage to a business or goodwill of the trader by whom the action is brought or (in a quia timet action) will probably do so.TM No. 21/2016
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"xxxx "42. Broadly stated in an action for passing off on the basis of unregistered trade mark generally for deciding the question of deceptive similarity the following factors to be considered:
"a) The nature of the marks i.e. whether the marks are word marks or label marks or composite marks, i.e. both words and label works.
"b) The degree of resembleness between the marks, phonetically similar and hence similar in idea. "c) The nature of the goods in respect of which they are used as trade marks.
"d) The similarity in the nature, character and performance of the goods of the rival traders.
"e) The class of purchasers who are likely to buy the goods bearing the marks they require, on their education and intelligence and a degree of care they are likely to exercise in purchasing and/or using the goods.
"f) The mode of purchasing the goods or placing orders for the goods and "g) Any other surrounding circumstances which may be relevant in the extent of dissimilarity between the competing marks.
"Weightage to be given to each of the aforesaid factors depends upon facts of each case and the same weightage cannot be given to each factor in every case."
22. In the present case, as already discussed, both the trademarks i.e. the trademark of the plaintiff and that of the defendant are identical. The product is also the same i.e. a soap containing the same main ingredient. The plaintiff is the senior user of the said trademark. The plainitff has also proved that it has substantial presence in the market and having a base of customers. None of the parties has led any evidence to prove that it has any licence from the drug controller concerned to TM No. 21/2016 CNR No. DLST010004152016 Page 35 of 55 Dinesh Kumar/ADJ02/South/Saket/ND/28.03.2023 M/s Rockmed Pharma Pvt. Ltd. Vs. M/s Nukind Healthcare & Anr.
manufacture the same. In such circumstances it can not be held that the product is Schedule H drug or not. It appears to be product sold over the Counter. The soap can also be prescribed by a medical practitioner to treat skin fungal infection. In both the cases, there are good chances that the customer might want the product of the plaintiff while he gets the product of the defendant. No doubt the packaging is different, however, no prudent customer can be vigilant to note that there are two different products of the same name in the market having two different packaging. Nowadays, it is very common for the companies to change the packaging of their products on regular interval. The customer might be under the belief that the plaintiff has changed the packaging of the latest batch of the soap manufactured by it. A customer can not be expected to have such a high degree of care while buying a soap that the soap with different packaging with the same name is not the product of the plaintiff. There are high chances of he being deceived by the product of the same name available in the market. Only because there is a price difference between the two products cannot be a sufficient reason to distinguish the product of the plaintiff from that of the defendant. Hence, I am of the considered opinion that the plaintiff has proved on the TM No. 21/2016 CNR No. DLST010004152016 Page 36 of 55 Dinesh Kumar/ADJ02/South/Saket/ND/28.03.2023 M/s Rockmed Pharma Pvt. Ltd. Vs. M/s Nukind Healthcare & Anr.
preponderance of probabilities that the defendant has been passing off its products as the goods of the plaintiff.
23. The defendant has claimed that it has adopted the trademark KETOGOLD under good faith honesty and bonafide. However, there is no evidence to prove the said fact on record. It has not filed any report of market survey to show that it had not found any product in the name of KETOGOLD in the market during its survey. Certain printout were filed by the defendant with the written statement. However, it has not tendered those printouts in evidence and therefore the Court cannot consider them as evidence while deciding the suit. The sales figures for 201415 and 201516 are filed by the plaintiff on record which show that the product of the plaintiff has substantial sale. The product of the Plaintiff under the mark KETOGOLD could not have gone unnoticed in the market. The defendants have started using the mark after complete knowledge of the Plaintiff's mark and hence the adoption of the mark does not appear to be innocent. In these circumstances, it cannot be said on the preponderance of probabilities that the defendant had used the trademark KETOGOLD in good faith honestly.
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24. Be that as it may, Hon'ble Supreme Court of India in Ruston & Hornsby Ltd. v. Zamindara Engineering Co., (1969) 2 SCC 727 has held that knowledge, dishonest intention or actual deception are not required to be proved while deciding an action for passing off. It has held as under:
"5. The action for infringement is a statutory right. It is dependent upon the validity of the registration and subject to other restrictions laid down in Sections 30, 34 and 35 of the Act. On the other hand the gist of a passing off action is that A is not entitled to represent his goods as the goods of B but it is not necessary for B to prove that A did this knowingly or with any intent to deceive. It is enough that the getup of B's goods has become distinctive of them and that there is a probability of confusion between them and the goods of A. No case of actual deception nor any actual damage need be proved. At common law the action was not maintainable unless there had been fraud on A's part. In equity, however, Lord Cottenham, L.C., in Millington v. Fox [3 My & Cr 338] held that it was immaterial whether the defendant had been fraudulent or not in using the plaintiff's trade mark and granted an injunction accordingly. The common law courts, however, adhered to their view that fraud was necessary until the Judicature Acts, by fusing law and equity, gave the equitable rule the victory over the common law rule."
25. In the present case also, the plaintiff is not required to prove that the use of the trademark of the plaintiff by the defendant was dishonest use. The plaintiff has proved that it is the senior user of the trademark and that it has substantial sale in the market and thus a reputation and goodwill of trademark TM No. 21/2016 CNR No. DLST010004152016 Page 38 of 55 Dinesh Kumar/ADJ02/South/Saket/ND/28.03.2023 M/s Rockmed Pharma Pvt. Ltd. Vs. M/s Nukind Healthcare & Anr.
KETOGOLD. Hence, the plaintiff has a cause of action to bring an action of passing off against the defendants.
26. I have studied the judgments relied upon by the defendant. They are distinguishable on facts and not applicable to the facts and circumstances of the present case. In Rhizome Distilleries Pvt. Ltd. & Ors. Vs. Pernod Ricard S.A. France & Ors. (2010) 42 PTC 806, the trademarks were not identical. The similarity was of word IMPERIAL. Hon'ble High Court has observed that no exclusive or proprietary rights can be claimed by either of the parties in respect of the word IMPERIAL which is not only in common parlance to be found in every dictionary, but also is laudatory in nature as it alludes to royalty or grandeur. In the present case however the word KETOGOLD is not a dictionary word but a coined word. In Marico Ltd. Vs. Agro Tech Foods Ltd. 2011 (1) RAJ 558 (DEL), it has been held by the Hon'ble High Court that the expression "LOW ABSORB " is not a coined word and at best it is a combination of two popular English words which are descriptive of the nature of the product. Therefore, the injunction was not granted. This is not the situation in the present case. In Scherin Corporation & Ors. Vs. Alkem Laboratories (2010) 42 PTC 772, Hon'ble High Court has TM No. 21/2016 CNR No. DLST010004152016 Page 39 of 55 Dinesh Kumar/ADJ02/South/Saket/ND/28.03.2023 M/s Rockmed Pharma Pvt. Ltd. Vs. M/s Nukind Healthcare & Anr.
observed that the common feature in the competing marks i.e. TEMO was only descriptive and publici juris and, therefore, the customers would tend to ignore the common feature and would pay more attention to the uncommon feature. Even if they are expressed as a whole, the two do not have any phonetic similarity to make them objectionable. In the present case however, the trademark are identical. In Khoday Distilleries Ltd. Vs. The Scotch Whiskey Association & Ors. (2008) 10 SCC 723 Hon'ble Supreme Court Of India has observed that use of word Scot with the name of the product will not give indication that it was a scotch as the class of buyer is supposed to know the value of money, the quality and content of Scotch Whisky. They are supposed to be aware of the difference of the process of manufacture, the place of manufacture and their origin. It is not so in the present case. Similarly in J.R Kapoor Vs. Micronix India 1994 Supp (3) SCC 215 the marks were not identical. Hon'ble Supreme Court has observed that the word 'micro' being descriptive of the micro technology used for production of many electronic goods which dairy come to the market, no one Can claim monopoly over the use of the said word. It has held that anyone producing any product with the use of micro chip technology would be justified in using the TM No. 21/2016 CNR No. DLST010004152016 Page 40 of 55 Dinesh Kumar/ADJ02/South/Saket/ND/28.03.2023 M/s Rockmed Pharma Pvt. Ltd. Vs. M/s Nukind Healthcare & Anr.
said word as a prefix to his trade name. In Astrazeneca U.K. Ltd. & Anr. Vs. Orchid Chemicals & Anr. 2007 (34) PTC 469 DEL word MERO was common in both the marks but the marks were different. Hon'ble High Court held that other companies were also marketing the same medicine with different trade marks having common prefix `Mero' and no action had been initiated by the plaintiffs against such other companies. Therefore, the application for interim injunction was dismissed. Again,it is not so in the present case. No other company is shown to have using the word KETOGOLD. In Shelke Beverages Pvt. Ltd. Vs. Rasik Lal Manik Chand Dhariwal 2010 (112) BOM 1479, marks OXYRICH and OXYCOOL were found to be not deceptively similar. In F. Hoffman Roche Vs. Geoffrey AIR 1970 SC 2062, there was no deceptive similarity between the word 'PROTOVIT' and 'DROPOVIT'. In Rich Products Corporation Vs. Indo Nippon Food Ltd. 2010 (42) PTC 660 DEL, Hon'ble High Court has held that the words "WHIP TOPPING" which formed a part of the plaintiff‟s mark were not coined words but both generic and descriptive of the product. The words had not acquired a secondary meaning. In the present case word KETOGOLD is a coined word. In Khandelwal Laboratories TM No. 21/2016 CNR No. DLST010004152016 Page 41 of 55 Dinesh Kumar/ADJ02/South/Saket/ND/28.03.2023 M/s Rockmed Pharma Pvt. Ltd. Vs. M/s Nukind Healthcare & Anr.
Ltd. Vs. F.D.C. Ltd. 2001 (4) RAJ 197 DEL, no deceptive similarity was found between words CEFI and ZIFI as the product was a Schedule H Drug.
27. In terms of the discussion hereinabove, issues no. 2(a), 2(b), 3(a) and 3(b) are decided in favour of the plaintiff and against the defendants.
28. Issue no. 4 and 5 These issues read as under:
"4. Whether the plaintiff is entitled for decree of perpetual injunction against the defendant in respect of its trademark 'KETOGOLD', as per paragraph 45 (a) of the plaint? Burden of proof on plaintiff.
"5. Whether the plaintiff is entitled for decree of mandatory injunction / delivery up of destruction of copies under the custody of defendant, against the defendant in respect of its trademark 'KETOGOLD', as per paragraph 45(b) of the plaint? Burden of proof on plaintiff."
29. In view of the findings of issues no. 2(a), 2(b), 3(a) and 3(b), I hold that the Plaintiff is entitled to a decree of permanent injunction in respect of its trademark 'KETOGOLD', as per paragraph 45 (a) of the plaint. The plaintiff is also entitled for decree of mandatory injunction / delivery up of destruction of copies under the custody of defendant, against the defendant in respect of its trademark 'KETOGOLD', as per paragraph 45(b) TM No. 21/2016 CNR No. DLST010004152016 Page 42 of 55 Dinesh Kumar/ADJ02/South/Saket/ND/28.03.2023 M/s Rockmed Pharma Pvt. Ltd. Vs. M/s Nukind Healthcare & Anr.
of the plaint. The issues are accordingly decided in favour of the plaintiff.
30. Issue no. 6 This issue reads as under:
"6. Whether the plaintiff is entitled for rendition of accounts as per paragraph 45(c) of the plaint, against the defendant? Burden of proof on plaintiff."
31. The plaintiff has proved that the defendant no. 1 had been passing off his goods as goods of the plaintiff and therefore, the defendant no. 1 must have earned some profit. Therefore, the plaintiff is entitled for rendition of accounts of the defendant. Hence, the issue is accordingly decided in favour of the plaintiff.
32. Issue No. 7 : This issue reads as under :
"Whether the plaintiff is entitled for punitive damages of Rs. 3 lacs against the defendant, as per paragraph 45(d) of the plaint? Burden of proof on plaintiff."
33. Section 135 of the Trademark Act provides the reliefs a suit for infringement or passing off. It reads as under:
"135. Relief in suits for infringement or for passing off. "(1)The relief which a court may grant in any suit for infringement or for passing off referred to in section 134 includes injunction (subject to such terms, if any, as the court thinks fit) and at the option of the plaintiff, either damages or an account of profits, together with or without any order for the deliveryup of the infringing labels and marks for destruction or erasure.TM No. 21/2016
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"(2) The order of injunction under subsection (1) may include an ex parte injunction or any interlocutory order for any of the following matters, namely:--(a) for discovery of documents;(b) preserving of infringing goods, documents or other evidence which are related to the subjectmatter of the suit;(c) restraining the defendant from disposing of or dealing with his assets in a manner which may adversely affect plaintiff's ability to recover damages, costs or other pecuniary remedies which may be finally awarded to the plaintiff.
"(3) Notwithstanding anything contained in subsection (1), the court shall not grant relief by way of damages (other than nominal damages) or on account of profits in any case--(a) where in a suit for infringement of a trade mark, the infringement complained of is in relation to a certification trade mark or collective mark; or (b) where in a suit for infringement the defendant satisfies the court--(i) that at the time he commenced to use the trade mark complained of in the suit, he was unaware and had no reasonable ground for believing that the trade mark of the plaintiff was on the register or that the plaintiff was a registered user using by way of permitted use;
and (ii) that when he became aware of the existence and nature of the plaintiff's right in the trade mark, he forthwith ceased to use the trade mark in relation to goods or services in respect of which it was registered; or (c) where in a suit for passing off, the defendant satisfies the court-- (i) that at the time he commenced to use the trade mark complained of in the suit he was unaware and had no reasonable ground for believing that the trade mark of the plaintiff was in use; and (ii) that when he became aware of the existence and nature of the plaintiff's trade mark he forthwith ceased to use the trade mark complained of."
34. Thus, Section 135 of the Trademark Act provides that the plaintiff can either claim damages or an account of profits. The plaintiff cannot be granted both the reliefs. However, the plaintiff can always claim and the Court may grant punitive damages to the plaintiff in a suit for trademark infringment or TM No. 21/2016 CNR No. DLST010004152016 Page 44 of 55 Dinesh Kumar/ADJ02/South/Saket/ND/28.03.2023 M/s Rockmed Pharma Pvt. Ltd. Vs. M/s Nukind Healthcare & Anr.
passing off apart from the relief mentioned in Section 135 of Trade Marks Act. Hon'ble High Court of Delhi Microsoft Corporation Versus Ms. K. Mayuri & Ors. 2007 SCC OnLine Del 662 has discussed the law in relation to awarding punitive damagess in a matter of infringement of trademark or passing off. Hon'ble High Court has held as under :
"17. It hardly needs to be emphasised that the courts in India have started granting punitive as well as compensatory damages. The justification for award of compensatory damages is to make up the loss suffered by the plaintiff and the rationale behind granting punitive damages is to deter the wrongdoer and the likeminded from indulging in such unlawful activities. This is more so when an action has criminal propensity. While awarding punitive damages, the court will take into consideration the conduct of the defendants which has "willfully calculated to exploit the advantage of an established mark" (expression used by the courts in US), which may also be termed as "flagrancy of the defendant's conduct" (the test adopted by the Australian Courts). The English Courts have, adopting the same nature of test, used the test of "dishonest trader", who deals in products knowing that they are counterfeit or "recklessly indifferent" as to whether or not they are. "18. The rational behind awarding compensatory as well as punitive damages can also be found in the judgment of Royal Courts of Justice, UK in the case of Nottinghamshire Healthcare National Health Service Trust v. News Group Newspapers Ltd. (2002) EWHC 409 (ch). Following passage of the said judgment, in the words of Justice Pumfrey, succinctly brings out the justification for awarding such damages:
"When I refer to 'exemplary' damages, I am referring to damages of the kind discussed by Lord Devlin in Rookes v. Barnard (1964) AC 1129 to which I refer in more detail TM No. 21/2016 CNR No. DLST010004152016 Page 45 of 55 Dinesh Kumar/ADJ02/South/Saket/ND/28.03.2023 M/s Rockmed Pharma Pvt. Ltd. Vs. M/s Nukind Healthcare & Anr.
below. This includes an award of damages intended both to compensate the claimant for his loss and (in Lord Devlin's words) to teach the defendant that tort does not pay. I use 'aggravated' damages to refer to an award of damages which, while awarded with a view to compensating the claimant for his loss, has regard to the injury to the plaintiff's proper feelings of pride and dignity, humiliation, distress, insult, or pain caused by the circumstances of the defendant's conduct.
"The practice of grant of exemplary damages needs to be strengthened particularly in those cases where flagrant infringement is found. Such an exercise of power is not to be fettered by any requirement that the plaintiff must show some particular benefit which has accrued to the defendant or that the plaintiff must satisfy the court by leading evidence that he has Page 2082 suffered actual loss. In a case where the plaintiff proves such actual loss, he would be entitled to the same. However, even without such a proof, in case of flagrant infringement, the court has the complete discretion to make such award of damages as may seem appropriate to the circumstances, so that it acts as deterrent. In some cases, it is not possible to prove the actual damages, namely, that there is a normal rate of profit or that there is a normal or establish licensed royalty. Yet, clearly, the damages have to be assessed.
"19. In Nottinghamshire Healthcare (supra), while discussing the issue of award of damages, the Court referred to Sections 96 and 97 of Copyright, Designs and Patents Act, 1988 (for short, 'CDPA'). As per Section 96 of the said Act, an infringement of copyright is actionable by the copyright owner, which is the position in Indian law as well. Section 97 deals with damages and needs to be reproduced:
"97. (1) Where in an action for infringement of copyright it is shown that at the time of the infringement the defendant did not know, and had no reason to believe, that copyright subsisted in the work to which the action relates, the plaintiff is not entitled to damages against him, but without prejudice to any other remedy.TM No. 21/2016
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"(2) The court may in an action for infringement of copyright having regard to all the circumstances, in particular to "a) the flagrancy of the infringement, and "b) any benefit accruing to the defendant by reason of the infringement, award such additional damages as the justice of the case may require.
"20.The legislative provision for award of damages, insofar as India is concerned, is Section 135 of the Trade Marks Act, 1999, which inter alia stipulates that apart from injunction, at the option of the plaintiff, court may grant either damages or an account of profits, together with or without any order for deliveryup of the infringing labels and marks for destruction or erasure. Likewise, Section 55 of the Copyright Act, 1957 deals with civil remedies for infringement of copyright and as per this provision, where copyright in any work has been infringed, the owner of the copyright is "entitled to all such remedies by way of injunction, damages, accounts and otherwise as are or may be conferred by the law for the infringement of a right". The only circumstances in which damages are not to be awarded is where the defendant is able to show that he had no reasonable ground for believing that the copyright subsisted in the work. Obviously, therefore, in case of flagrant violation, as per this provision damages can be awarded. The aforesaid provisions in the Trade Marks Act as well as the Copyright Act empower the court to award damages, but no specific yardstick is provided in these statutory provisions. No doubt, we do not have parallel provision or the yardsticks which are mentioned in Subsection (2) of Section 97 of the CDPA, namely, taking into consideration the flagrancy of infringement and any benefit accruing to the defendant by reason of the infringement can be traced to the Common Law principles for award of damages. This yardstick can be applied by the courts in India having regard Page 2083 to the expression "either damages or an account of profits" as contained in the Trade Marks Act, 1999 and "...damages, accounts and otherwise as are or may be conferred by law for infringement of a right" in the Copyright Act, 1957. Even TM No. 21/2016 CNR No. DLST010004152016 Page 47 of 55 Dinesh Kumar/ADJ02/South/Saket/ND/28.03.2023 M/s Rockmed Pharma Pvt. Ltd. Vs. M/s Nukind Healthcare & Anr.
in the aforesaid judgment, the English Court observed that the aforesaid two provisions, authorising the award of damages, flow naturally and directly from the tortuous act. In copyright cases, the measure of damage has been said to be the 'depreciation caused by the infringement to the value of the copyright as a chose in action' {Lord Wright MR in Sutherland v. Caxton (1936) Ch 323}.
"21. The expression "either damages or an account of profits" occurring in Section 135 of the Trade Marks Act, 1999 is to be given its fullest meaning to give effect to the purpose for which such a provision is introduced burdening the violators with 'damages' of the kinds available under the law. Law recognizes, and it has its roots in tort law, award of punitive and exemplary damages. Rational for award of such damages is already outlined above. By the process of interpretation of the aforesaid provision, this dimension of 'damages' needs to be incorporated. Interpretation has now become one of the main intellectual paradigm of legal scholarship. Dworkin promulgated interpretative theory of law in 1980s. Accounting for the concept of law, he claims, is inevitably tied up with the considerations about what the law is there to settle. Cardozo acknowledges in his classic "The Nature of the Judicial Process' "I take judgemade law as one of the existing realities of life", and that "no system of jus scriptum has been able to escape the need of it"
and he elaborates: "It is true that codes and statutes do not render the judge superfluous, nor his work perfunctory and mechanical. There are gaps to be filled. There are hardships and wrongs to be mitigated if not avoided." Interpretation is often spoken of as if it were nothing but the search and the discovery of a meaning which, however, obscure and latent, had nonetheless a real and ascertainable preexistence in the legislator's mind.
"22. As pointed out above, courts in India have also started awarding punitive as well as exemplary damages. Time Incorporated v. Lokesh Srivastava 2005 (30) PTC 3, was also a case where the defendants chose to remain exparte. While refusing to grant damages on the ground that nothing was proved on record as to how these damages were TM No. 21/2016 CNR No. DLST010004152016 Page 48 of 55 Dinesh Kumar/ADJ02/South/Saket/ND/28.03.2023 M/s Rockmed Pharma Pvt. Ltd. Vs. M/s Nukind Healthcare & Anr.
calculated, the Court still granted punitive and exemplary damages of Rs. 5 lacs. It would be apposite to reproduce discussion on this aspect contained in paras 6 to 8 of the judgment:
"6. The plaintiff has claimed a decree of Rs. 12.5 lacs on account of damages suffered by the plaintiff or an order of rendition of accounts of the profits illegally earned by the defendants by use of the impugned trade mark. In view of the fact that the defendants have not chosen to turn up and face these proceedings, this Court is of the considered view that an order of rendition of accounts is fully warranted and called for. Damages in the sum of Rs. 12.5 lacs as claimed cannot be awarded on account of the fact that the plaintiff has not succeeded in Page 2084 proving on record as to how and on what basis these damages have been calculated. Damages of Rs. 5 lacs are claimed on account of loss of reputation of the plaintiff. These can be awarded inasmuch as the readers who might have read the defendants' TIME ASIA SANSKARAN, must have formed a very poor opinion about the plaintiff's Magazine and as such, the reputation and goodwill of the plaintiff has suffered. "7. Coming to the claim of Rs. 5 lacs as punitive and exemplary damages for the flagrant infringement of the plaintiff's trade mark, this Court is of the considered view that a distinction has to be drawn between compensatory damages and punitive damages. The award of compensatory damages to a plaintiff is aimed at compensating him for the loss suffered by him whereas punitive damages are aimed at deterring a wrong doer and the like minded from indulging in such unlawful activities. Whenever an action has criminal propensity also the punitive damages are clearly called for so that the tendency to violate the laws and infringe the rights of others with a view to make money is curbed. The punitive damages are founded on the philosophy of corrective justice and as such, in appropriate cases these must be awarded to give a signal to the wrong doers that law does not take a breach merely as a matter between rival parties but feels concerned about those also who are not party to the lis but suffer on account of the breach. In the TM No. 21/2016 CNR No. DLST010004152016 Page 49 of 55 Dinesh Kumar/ADJ02/South/Saket/ND/28.03.2023 M/s Rockmed Pharma Pvt. Ltd. Vs. M/s Nukind Healthcare & Anr.
case in hand itself, it is not only the plaintiff, who has suffered on account of the infringement of its trade mark and Magazine design but a large number of readers of the defendants' Magazine 'TIME ASIA SANSKARAN' also have suffered by purchasing the defendants' Magazines under an impression that the same are from the reputed publishing house of the plaintiff company.
"8. This Court has no hesitation in saying that the time has come when the Courts dealing actions for infringement of trade marks, copy rights, patents etc. should not only grant compensatory damages but award punitive damages also with a view to discourage and dishearten law breakers who indulge in violations with impunity out of lust for money so that they realize that in case they are caught, they would be liable not only to reimburse the aggrieved party but would be liable to pay punitive damages also, which may spell financial disaster for them. In Mathias v. Accor Economy Lodging, Inc. 347 F.3d 672 (7th Cir.2003) the factors underlying the grant of punitive damages were discussed and it was observed that one function of punitive damages is to relieve the pressure on an overloaded system of criminal justice by providing a civil alternative to criminal prosecution of minor crimes. It was further observed that the award of punitive damages serves the additional purpose of limiting the defendant's ability to profit from its fraud by escaping detection and prosecution. If a tortfeasor is caught only half the time he commits torts, then when he is caught he should be punished twice as heavily in order to make up for the times he gets away. This Court feels that this approach is necessitated further for the reason that it is very difficult for a plaintiff to give proof of actual damages suffered by him as the defendants who indulge in such Page 2085 activities never maintain proper accounts of their transactions since they know that the same are objectionable and unlawful. In the present case, the claim of punitive damages if of Rs. 5 lacs only which can be safely awarded. Had it been higher even, this Court would not have hesitated in awarding the same. This Court is of the view that the punitive damages should be really punitive and not flee bite TM No. 21/2016 CNR No. DLST010004152016 Page 50 of 55 Dinesh Kumar/ADJ02/South/Saket/ND/28.03.2023 M/s Rockmed Pharma Pvt. Ltd. Vs. M/s Nukind Healthcare & Anr.
and quantum thereof should depend upon the flagrancy of infringement.
"23. In Hero Honda Motors Ltd. v. Shree Assuramji Scooters 2006 (32) PTC 117 (Delhi), the Court granted punitive damages of Rs. 5 lacs after taking note of its earlier judgment in Time Incorporated (supra) as is clear from the following passages:
"18. I am in agreement with the aforesaid submission of learned Counsel for the plaintiff that damages in such cases must be awarded and a defendant, who chooses to stay away from the proceedings of the Court, should not be permitted to enjoy the benefits of evasion of court proceedings. Any view to the contrary would result in a situation where the defendant who appears in Court and submits its account books would be liable for damages, while a party which chooses to stay away from court proceedings would escape the liability on account failure of the availability of account books. A party who chooses to not participate in court proceedings and stay away must, thus, suffer the consequences of damages as stated and set out by the plaintiff. Of course, this would not imply that the plaintiff would be entitled to any figure quoted by it which may be astronomical. The figure of Rs. 5 lacs as damages can hardly be said to be astronomical keeping in mind the nature of deception alleged by the plaintiff which not only causes direct loss to the plaintiff, but also affects the reputation of the plaintiff by selling substandard goods in the market where the public may be deceived in buying the goods thinking the same to be that of the plaintiff. There is a larger public purpose involved to discourage such parties from indulging in such acts of deception and, thus, even if the same has a punitive element, it must be granted. R.C. Chopra, J. has very succinctly set out in Time Incorporated's case (supra) that punitive damages are founded on the philosophy of corrective justice. That was the case where the publishers of Time Magazine had come to Court and one of the factors which weighed while awarding punitive damages was that the readers had been sufferers of the infringement of the mark of the plaintiff. The only difference is that in the TM No. 21/2016 CNR No. DLST010004152016 Page 51 of 55 Dinesh Kumar/ADJ02/South/Saket/ND/28.03.2023 M/s Rockmed Pharma Pvt. Ltd. Vs. M/s Nukind Healthcare & Anr.
present case it is the consumer of the products of the plaintiff, who have suffered as a consequence of the infringement of the mark and logo of the plaintiff by the defendant.
"19. The second aspect emphasized in Times Incorporated's case (supra) has also material bearing as the object is to relive the pressure on overloaded system of criminal justice by providing civil alternative to criminal prosecution of minor crimes. The defendant could have been prosecuted for such counterfeiting, but the plaintiff has considered appropriate to confine the relief to civil proceedings. "20. Learned Counsel for the plaintiff also rightly points out that instead of plaintiff utilising its energy for expansion of its business and sale of its products, the resources have to be spread over a number of such litigations to bring to book the offending traders in the market. In such a case, both compensatory and punitive damages ought to be granted apart from the costs incurred by the plaintiff in such litigation.
"24. To summarize the legal position, damages, in cases where blatant infringing activities of the defendant are found, can be awarded under the following three heads: "1. Compensatory/Actual damages The damages actually suffered by the plaintiff because of infringement of the plaintiff's intellectual property rights by the defendant. "2. Damages to Goodwill and Reputation On account of undermining the plaintiff's reputation and Goodwill in the market as a result of unauthorised counterfeiting by the defendants of the plaintiff's product.
"3. Exemplary/punitive damages To deter the wrongdoer and the likeminded from indulging in such unlawful activities.
35. Thus, it has been settled that in a suit for action against the infringment of the trademark or passing off, the Court can award punitive damages also apart from the relief of compensatory damages or rendition of accounts. In the present TM No. 21/2016 CNR No. DLST010004152016 Page 52 of 55 Dinesh Kumar/ADJ02/South/Saket/ND/28.03.2023 M/s Rockmed Pharma Pvt. Ltd. Vs. M/s Nukind Healthcare & Anr.
case, the defendant has failed to satisfy the court that at the time it commenced to use the trade mark complained of in the suit, it was unaware and had no reasonable ground for believing that the trade mark of the plaintiff was in use. It has also failed to satisfy the Court that when it became aware of the existence and nature of the plaintiff's trade mark it forthwith ceased to use the trade mark complained of. Rather, the defendant contested the suit on merits. Therefore, I am of the considered opinion that the plaintiff is entitled to punitive damages also.
36. The plaintiff has claimed punitive damages of Rs. 3,00,000/. As per the records, the plaintiff has started using the trademark KETOGOLD from 01.10.2013. The defendant no. 1 in its WS has claimed that it had started the use of trademark in the beginning of year 2015. There is nothing on record to show that the defendant no. 1 had started using the trademark prior to year 2015. The present suit was filed in March 2016 and the defendants were restrained from using the said trademark vide order dated 04.06.2016. Thus, the record would that for about 17 months, the product of the defendant was available for sale in the market. Considering the value of the product of the plaintiff and the defendant, the period of availability of the product of the defendant in the market, I am of the considered TM No. 21/2016 CNR No. DLST010004152016 Page 53 of 55 Dinesh Kumar/ADJ02/South/Saket/ND/28.03.2023 M/s Rockmed Pharma Pvt. Ltd. Vs. M/s Nukind Healthcare & Anr.
opnion that punitive damages to the sum of Rs. 1,00,000/ will be sufficient in the present case. The amount of Rs. 3,00,000/ as punitive damages would be too harsh on the defendants. Further, the defendant no. 2 had been making the product on behalf of defendant no. 1. Therefore, it is the defendant no. 1 who is liable to pay the punitive damages to the plaintiff. Hence, I hold that the defendant no. 1 is liable to pay punitive damages of Rs. 1,00,000/ to the plaintiff. The issue is accordingly decided in favour of the plaintiff.
37. Issue no. 8 Relief. In the light of the discussion hereinabove, the suit of the plaintiff is decreed. A decree for permanent injunction is passed in favor of the plaintiff and against the defendants restraining the defendants, their successors, their proprietors, partners, directors and every person in charge of and for the conduct of the business and each of them whether by themselves or by their servants, agents, dealers, stockiest, associates, subsidiary concern or otherwise howsoever from passing off their goods as that of the plaintiff by using the identical trade mark 'KETOGOLD' with any prefix or suffix and / or any phonetically and visually similar trade mark as that of the plaintiff's trade mark 'KETOGOLD'. A decree for mandatory Injunction is also passed in favour of TM No. 21/2016 CNR No. DLST010004152016 Page 54 of 55 Dinesh Kumar/ADJ02/South/Saket/ND/28.03.2023 M/s Rockmed Pharma Pvt. Ltd. Vs. M/s Nukind Healthcare & Anr.
the plaintiff and against the defendants directing the defendants to hand over to the plaintiff, the packing cartons, boxes and packing material for destruction. A decree of Rs. 1,00,000/ as punitive damages is also passed in favour of the plaintiff and against the defendant no. 1. A preliminary decree for rendition of account is also passed in favor of plaintiff and against the defendant no. 1 to render accounts for the financial year 2015 2016 and for the months of April, May and June of the year 2016 in respect of goods sold under the trade name 'KETOGOLD'. Sh. Rohit Dadwal, Advocate, Enrollment No. D/2878/14, Mobile No. 9953090366, Office At Chamber No. 130, Lawyers Block, Saket Court Complex, Delhi is appointed is appointed as a Local Commissioner to go into accounts of defendant no. 1 / its successor and submit his report within three months. The Fees of the Local Commissioner shall be Rs.30,000/ payable by the plaintiff. Cost of the suit is also awarded to the plaintiff against the Defendants.
38. Decree sheet be prepared accordingly.
Pronounced in the open Court Digitally signed by DINESH DINESH KUMAR on this 28th Day of March, 2023. KUMAR Date:
2023.03.28 16:18:55 +0530 (DINESH KUMAR) ADDL. DISTRICT JUDGE02, SOUTH, SAKET COURTS, NEW DELHI.TM No. 21/2016
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