J. B. Chemicals And Pharmaceuticals Ltd vs Mahendra Singh And Anr on 1 May, 2023

[Cites 4, Cited by 0]

Delhi High Court - Orders

J. B. Chemicals And Pharmaceuticals Ltd vs Mahendra Singh And Anr on 1 May, 2023

Bench: Sanjeev Narula

                          $~69
                          *    IN THE HIGH COURT OF DELHI AT NEW DELHI
                          +        CS(COMM) 264/2023
                                   J. B. CHEMICALS AND PHARMACEUTICALS LTD
                                                                                              ..... Plaintiff
                                                      Through:       Ms. Shwetasree Majumder, Mr.
                                                                     Prithvi Singh and Mr. Prithvi Gulati,
                                                                     Advocates.

                                                      versus

                                   MAHENDRA SINGH AND ANR                                   ..... Defendants
                                                      Through:       None.

                                   CORAM:
                                   HON'BLE MR. JUSTICE SANJEEV NARULA
                                                      ORDER

% 01.05.2023 I.A. No. 8405/2023 (seeking leave to file additional documents)

1. This is an application seeking leave to file additional documents under the Commercial Courts Act, 2015.

2. Plaintiff, if they wish to file additional documents at a later stage, shall do so strictly as per the provisions of the said Act.

3. The application is disposed of.

I.A. No. 8406/2023 (seeking exemption from filing originals, clear copies and documents with proper margins)

4. Exemption is granted, subject to all just exceptions.

5. The Plaintiff shall file legible and clearer copies of exempted documents, compliant with practice rules, before the next date of hearing.

Signature Not Verified Digitally Signed CS(COMM) 264/2023 Page 1 of 5 By:SAPNA SETHI Signing Date:02.05.2023 09:27:58

6. Disposed of.

I.A. No. 8407/2023 (u/Section 12A of the Commercial Courts Act, 2015, r/w Section 151 of the Code of Civil Procedure, 1908)

7. Having regard to the facts of the present case and in light of the judgement of Division Bench of this Court in Chandra Kishore Chaurasia v. R.A. Perfumery Works Private Ltd.,1 exemption from attempting pre- institution mediation is allowed.

8. Accordingly, the application is disposed of.

CS(COMM) 264/2023

9. Let the plaint be registered as a suit.

10. Upon filing of process fee, issue summons to the Defendants by all permissible modes. Summons shall state that the written statement(s) shall be filed by the Defendants within 30 days from the date of receipt of summons. Along with the written statement(s), the Defendants shall also file affidavit(s) of admission/denial of the documents of Plaintiff, without which the written statement(s) shall not be taken on record.

11. Liberty is given to the Plaintiff to file replication(s) within 15 days of the receipt of the written statement(s). Along with the replication(s), if any, filed by the Plaintiff, affidavit(s) of admission/denial of documents of the Defendants, be filed by the Plaintiff, without which the replication(s) shall not be taken on record. If any of the parties wish to seek inspection of any documents, the same shall be sought and given within the timelines.

DHC Neutral Citation: 2022/DHC/004454.

Signature Not Verified Digitally Signed CS(COMM) 264/2023 Page 2 of 5 By:SAPNA SETHI Signing Date:02.05.2023 09:27:58

12. List before the Joint Registrar for marking of exhibits on 04th August, 2023. It is made clear that any party unjustifiably denying documents would be liable to be burdened with costs.

13. List before Court for framing of issues thereafter.

I.A. No. 8404/2023 (u/Order XXXIX Rules 1 & 2 r/w Section 151 of the Code of Civil Procedure, 1908)

14. Plaintiff, the registered proprietor of trademarks "BIZFER", "BIZFER-XT" and "BIZFER ELIXIR" [hereinafter, "BIZFER marks"], has filed the instant suit seeking an order of permanent injunction against infringement of the said marks by Defendants, who have adopted and are using the mark "VIZFER", for identical goods.

15. The case, as set out in the plaint, is as follows:

15.1. Plaintiff is engaged in manufacture of a range of pharmaceutical speciality products including, tablets, injectable, creams, ointments, lozenges, herbal liquids and capsules sold under its various brands such as "BIZFER", "METROGYL", "NICARDIA", "RANTAC", "CILACAR", "SPORLAC" and "LOBUN". It has a significant presence in the areas of gastroenterology, anti-infectives, wound-care, gynaecology, vitamins and minerals.

15.2 Plaintiff conceived the BIZFER marks in 2008 for syrup and tablets that are beneficial for the treatment of anaemia. The production of syrup has however, been discontinued now. The details of registration of the BIZFER marks in Plaintiff's favour are as follows:

Signature Not Verified Digitally Signed CS(COMM) 264/2023 Page 3 of 5 By:SAPNA SETHI Signing Date:02.05.2023 09:27:58

Trademark Application Date of Application Class No. BIZFER 1719786 11th August 2008 5 BIZFER-XT 1719787 11th August 2008 5 BIZFER 3785134 22nd March 2018 5 ELIXIR 15.3. The plaint also sets out annual sales figures for the last four years, generated from trade in "BIZFER-XT". Owing to the large-scale sales, promotion and advertisement of the products under BIZFER marks, members of trade and public associate the said products with Plaintiff alone. 15.4 Defendant No. 1 is the marketer and Defendant No. 2 is the manufacturer of the tablets bearing "VIZFER" trademark [hereinafter, "impugned mark"], which contain the same key ingredients as Plaintiff's BIZFER products. Based on Plaintiff's research and Defendant No. 1's GST registration certificate, apparently, Defendants commenced usage of the impugned mark in July, 2022 only, under a license from FSSAI. Thus, Plaintiff is the prior user of BIZFER marks.

16. Ms. Shwetasree Majumder, counsel for Plaintiff, contends that the impugned mark is phonetically, visually, structurally and deceptively similar to Plaintiff's BIZFER marks. Defendants have malafidely adopted the impugned mark and only replaced the letter 'B' with letter 'V' to come close to registered "BIZFER" marks and ride on Plaintiff's reputation and goodwill. Ms. Majumdar further states that Plaintiff has a drug license, whereas Defendants are selling the impugned pharmaceutical products under FSSAI license as a health supplement. Therefore, the quality of Defendants' Signature Not Verified Digitally Signed CS(COMM) 264/2023 Page 4 of 5 By:SAPNA SETHI Signing Date:02.05.2023 09:27:58 products and the possible side effects of consuming them on the human body, are unknown and could prove to be detrimental to the consumer's health.

17. In view of the afore-noted submissions, the Court finds that Plaintiff has made out a prima facie case in its favour and in case an ex-parte ad-

interim injunction is not granted, negative ramifications for the public health and safety could follow. Plaintiff would also suffer an irreparable loss; balance of convenience lies in favour of the Plaintiff and against the Defendants.

18. Accordingly, till the next date of hearing, Defendants or any one acting on their behalf, are restrained from manufacturing, marketing, offering for sale, selling, advertising, directly or indirectly any product under the impugned mark "VIZFER" or any other mark identical or deceptively similar to Plaintiff's BIZFER trademarks, that would amount to infringement or passing of Plaintiff's BIZFER trademarks.

19. Compliance of Order XXXIX Rule 3 of the Code of Civil Procedure, 1908 be done with three days from today.

20. Re-notify on 09th October, 2023.

SANJEEV NARULA, J MAY 1, 2023/as Signature Not Verified Digitally Signed CS(COMM) 264/2023 Page 5 of 5 By:SAPNA SETHI Signing Date:02.05.2023 09:27:58

Unlock Advanced Research with PRISMAI

Delhi High Court - Orders