Delhi High Court - Orders
Mankind Pharma Limited vs Nucleoid Pharmaceutical Private ... on 2 June, 2022
Author: Navin Chawla
Bench: Navin Chawla
$~9
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CS(COMM) 409/2022
MANKIND PHARMA LIMITED ..... Plaintiff
Through: Mr.Amit Sibal, Sr. Adv. with
Mr.Hemant Daswani, Mr.Rhawani
Singh, Mr.Saksham Dhingra,
Mr.Rishab Sharma, Advs.
versus
NUCLEOID PHARMACEUTICAL PRIVATE LIMITED AND ANR
..... Defendants
Through: Nemo.
CORAM:
HON'BLE MR. JUSTICE NAVIN CHAWLA
ORDER
% 02.06.2022 IA 9329/2022
1. This application has been filed on behalf of the plaintiff seeking exemption from filing pre-institution mediation under Section 12A of the Commercial Courts Act, 2015.
2. Having perused the contents of the application, the same is allowed.
IA 9330/20223. This is an application filed on behalf of the plaintiff seeking permission to file additional documents at a later stage.
4. The plaintiff may file the additional documents strictly in accordance with the law.
5. The application stands disposed of.
IA 9331/20226. This is an application seeking exemption from making advance service of the suit to the defendants. It is alleged that the said service has not Signature Not Verified Digitally Signed By:SHALOO BATRA Signing Date:25.06.2022 been made as it is apprehended that the defendants may, on service of the notice, dispose of or sell the goods being manufactured under the impugned trade mark. Appointment of a Local Commissioner(s) is also prayed along with the suit.
7. Having considered the contents of the application, the same is allowed. The plaintiff is exempted from making an advance service of the suit to the defendants.
CS(COMM) 409/2022
8. Let the plaint be registered as a suit.
9. Issue summons to the defendants to be served through all permitted modes, returnable on 23rd September, 2022.
10. The summons to the defendant(s) shall indicate that the written statement(s) to the plaint shall be positively filed within a period of 30 days from the date of receipt of summons. Along with the written statement(s), the defendant(s) shall also file the affidavit(s) of admission/denial of the documents of the plaintiff, without which the written statement(s) shall not be taken on record.
11. Liberty is given to the plaintiff to file a replication(s) within a period of 15 days of the receipt of the written statement(s). Along with the replication(s), if any, filed by the plaintiff, the affidavit(s) of admission/denial of documents of the defendant(s) 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.
IA 9327/2022(Stay)
12. Issue notice.
Signature Not Verified Digitally Signed By:SHALOO BATRA Signing Date:25.06.202213. On the plaintiff taking steps, let notice be served on the defendants through all permissible modes, returnable on 23rd September, 2022.
14. Let a reply to the application be filed by the defendants within 30 days of receipt of notice. Rejoinder thereto, if any, be filed within 15 days thereafter.
15. It is the case of the plaintiff that it is the 5th largest pharmaceutical company in India. It was incorporated in the year 1991 as a Private Limited Company and thereafter has been converted into a Public Company. It has a consolidated turnover of Rs. 7,291 Crores (Rupees Seven Thousand Two Hundred Ninety-One Crore only) for the financial year ending on 31.03.2022.
16. In the year 2003, it adopted the mark „NUROKIND‟ and applied for registration of the same on 28.02.2003 with respect to pharmaceutical and medicinal preparations. It launched its medicinal and pharmaceutical preparations containing Mecobalamin and Folic Acid tablets in different packages in the market under the trade name of 'NUROKIND-OD, NUROKIND GOLD, NUROKIND PLUS' in the year 2003-04. It achieved a sales turnover of over Rs. 100 Crore (Rupees One Hundred Crore only) for the financial the year 2010-11. The sales turnover has subsequently increased to approximately Rs. 508 Crore (Rupees Five Hundred Eight Crore only) for the financial year 2021-22. The plaintiff has given the details of its registrations of the trade mark in paragraph 5 of the plaint.
17. In the year 2010-11, the plaintiff launched different packages of medicinal preparations under the mark „NUROKIND-LC‟ containing ingredients such as L-Carnitine, L-Tartrate, Mecobalamin and Folic Acid Signature Not Verified Digitally Signed By:SHALOO BATRA Signing Date:25.06.2022 tablets. It also has a combination of vitamins that is prescribed to treat vitamin and other nutritional deficiencies.
18. The plaintiff is aggrieved by the adoption of similar packaging by the defendant for similar medicinal preparations in its trade mark 'NUROLED- LC'. The plaintiff has given a pictorial depiction of the packaging of the two products as under:
19. The learned senior counsel for the plaintiff has also produced before this Court the packaging of the products. He submits that the same have almost identical features as under:
a) The bifurcation of the impugned
artwork/get-up/label in two parts; with
different colours; turmeric yellow and maroon is identical to the Plaintiff;
b) The placement of two caricatures of human being in maroon and white colour reaching towards a maroon coloured ball on the bottom right of the label virtually identical to the Plaintiff.
c) The bifurcation of the label with different Signature Not Verified Digitally Signed By:SHALOO BATRA Signing Date:25.06.2022 colours is done in an identical manner where the maroon portion has a wave like effect with a silver lining;
d) Similar to the Plaintiff, reaching towards the caricatures the mark NUROLED-LC was in scripted in the turmeric yellow portion of the label towards the left centre;
e) The mark NUROLED-LC itself was written in maroon colour font below which the transliteration of the mark was written in Devnagri (Hindi) script which is identical to the Plaintiff;
f) Identical to the Plaintiff, the impugned artwork/get-up/ label also consisted of descriptive features such as "L-Carintine, L- Tartrate, Mecobalamine and Folic Acids Tablets " which was printed on the top centre of the artwork/get-up/label.
20. The plaintiff claims that it gained knowledge of the defendants‟ product in January 2022. The plaintiff sent a cease-and-desist notice dated 17.02.2022 to the defendants. It further asserts that the defendant no. 1 has been only in March 2019 and has not filed an application for the registration of the impugned mark 'NUROKIND'. It is for this reason that the plaintiff was not aware of the existence of the defendants‟ product earlier.
21. Having considered the contents of the plaint, the documents annexed Signature Not Verified Digitally Signed By:SHALOO BATRA Signing Date:25.06.2022 thereto, and having heard the submissions of the learned senior counsel for the plaintiff, I am of the opinion that the plaintiff has been able to make out a good prima facie case in its favour and the balance of convenience is also tilted in favour of the plaintiff. The plaintiff as well as the general public is likely to suffer grave irreparable injury in case the ad-interim injunction as prayed for is not granted at this stage.
22. Accordingly, the defendants, their servants, agents or assigns or any of them are restrained from marketing and/or selling medicinal and/or pharmaceutical preparations under the mark 'NUROLED-LC' in the form of an artwork/get-up/label/carton which is identical and/or substantially similar to that of the plaintiff, till the next date of hearing.
23. Compliance with Order XXXIX Rule 3 of the Code of Civil Procedure, 1908, be made within two weeks from today.
I.A. 9328/202224. By this application, the plaintiff prays for the appointment of two Local Commissioners.
25. For the reasons recorded hereinabove, I am of the opinion that the plaintiff has been able to make out a case for the appointment of two Local Commissioners to visit the premises of the defendants, details whereof are as under:
i) Nucleoid Pharmaceutical Private Limited of Plot No. B-10, F/F, Kh. 2/23, Block- B, Mansa Ram Park, Uttam Nagar, New Delhi - 110059.
ii) Synergic Pharma of Vill Bagguwala, Near Truck Union Office, Barotiwala, Baddi, District Solan, Himachal Pradesh -Signature Not Verified Digitally Signed By:SHALOO BATRA Signing Date:25.06.2022
173205.
26. I appoint Ms. Ambika Dilwali, Adv., Address: 22, Jorbagh, Opp. Lodhi Gardens, New Delhi, Mob. No.8800166812 and Mr. Aditya Vaibhav Singh, Adv., Office Address:B-186 Basement, Lajpat Nagar 1, New Delhi, Mob. No. 9899719607 as Local Commissioners to visit the abovementioned premises (i) and (ii) respectively of the defendants and seize and seal all the goods i.e. medicinal and/or pharmaceutical preparations, its packaging and other material bearing the mark 'NUROLED-LC' in the form of an artwork/get-up/label/carton which is identical and/or substantially similar to that of the plaintiff. Upon seizure, the Local Commissioner(s) shall release the goods/packaging material to the defendants on superdari basis, subject to the undertaking that the defendants shall not use the same; and shall produce the same as and when directed by this Court.
27. The Local Commissioner shall also seek inspection of the books of accounts of the defendants regarding the manufacture and sale of the product in the impugned packaging and make copies thereof.
28. The Local Commissioners shall be at liberty to seek police assistance and protection, if required, to execute the order of this Court. The SHO of the said area is directed to provide immediate assistance to the Local Commissioners upon request.
29. The Local Commissioners shall also be entitled to videograph and take photographs of the proceedings of inspection.
30. Two representatives for each site may accompany the Local Commissioners during the execution of the Commission.
31. The fee of the Local Commissioners, apart from out of pocket Signature Not Verified Digitally Signed By:SHALOO BATRA Signing Date:25.06.2022 expenses, is fixed at Rs.1,00,000/- (Rupees One Lakh only) for premises situated in Delhi and Rs.1,50,000/- (Rupees One Lakh Fifty Thousand only) for premises situated in Himachal Pradesh, respectively, in addition to the out-of-pocket expenses, to be paid by the plaintiff at this stage.
32. The Local Commissioners shall file their Report, which shall also be accompanied by sample product/packaging showing the use of the impugned trade mark by the defendant nos. 1 & 2.
33. The application is allowed in the above terms.
34. This order may not be uploaded on the website of the Delhi High Court for a period of two weeks.
35. Dasti.
NAVIN CHAWLA, J JUNE 2, 2022 RN/DJ Signature Not Verified Digitally Signed By:SHALOO BATRA Signing Date:25.06.2022