Madras High Court
Apollo Hospitals & Enterprises Ltd vs Mahesh Apollo Pharmacy on 12 April, 2016
Author: M.Sathyanarayanan
Bench: M.Sathyanarayanan
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 12.04.2016 CORAM: THE HONOURABLE MR. JUSTICE M.SATHYANARAYANAN C.S.No.724 of 2014 Apollo Hospitals & Enterprises Ltd., Regd. Office at No.19, Bishop Garden, Raja Annamalaipuram, Chennai-600 028. Rep. by its Authorized Signatory. .. Plaintiff Vs. Mahesh Apollo Pharmacy 14-340/2, Govt. Hospital Road, Chitoor, Rep. by its Director. ... Defendant Prayer: Civil Suit filed under Order VII Rule 1 CPC, Order IV Rule 1 of Original Side Rules r/w. Sections 27, 28, 29, 134 and 135 of the Trade Marks Act, 1999, praying for a judgment and decree against the defendant: (a) Permanent Injunction restraining the defendant, its men, agents, partner, associate, officer, representative, servant and all other persons acting on defendant's behalf from in any manner infringing the plaintiff's registered Trade Mark Apollo, Apollo Pharmacy, and Apollo Hospital either directly or by using any structurally, visually, phonetically and deceptively similar mark to the plaintiff's trademark Apollo, Apollo Pharmacy, and Apollo Hospital; (b) Permanent injunction restraining the Defendant, its men, agents, partner, associate, officer, representative, servant and all other persons acting on defendant's behalf from in any manner passing off goods and services as that of the plaintiff's by either using the plaintiff's trademark Apollo, Apollo Pharmacy, and Apollo Hospital or any structurally, visually, phonetically or deceptively similar mark to the plaintiff's trademark Apollo, Apollo Pharmacy, and Apollo Hospital; (c) Permanent injunction retraining the Defendant, its men, agents, partner, associate, officer, representative, servant and all other persons acting on defendant's behalf from in any manner using the name/mark Apollo and Apollo Pharmacy by themselves or in combination with other characters or words in connection with any pharmaceutical establishment operated, or pharmaceutical services, rendered by the defendant; (d) The defendant be directed to surrender to the plaintiff all materials, media etc., whether for invoicing, advertising or any other purpose which contain or bear the plaintiff's registered trademark or any structurally, visually, phonetically or deceptively similar mark to the plaintiff's trademark Apollo and Apollo Pharmacy; (e) The Defendant be directed to render accounts of profits of the defendant in favour of the plaintiff to examine and ascertain the profits made by the defendant, and thereafter on enquiry, final decree be passed and or an order for rendition of accounts of profits made by the defendant by using the mark Apollo and Apollo Pharmacy or any structurally, visually, phonetically or deceptively similar mark to the plaintiff's trademark Apollo and Apollo Pharmacy towards damages as and when ascertained to be awarded to the plaintiff and against the defendant on account of use of the offending trademark; (f) Award damages of Rs.25,00,000/- (Rupees Twenty Five Lakhs only) ; (g) An order for costs of the proceedings; and (h) Such other order or orders as this Court may deem fit and proper in the facts and circumstances of the present case. For Plaintiff : M/s.Vineet Subramani J U D G M E N T
The plaintiff would aver as follows:
1.1. The plaintiff is a multi-specialty medical service provider across the spectrum of medical and health care services and facilities right from diagnostic clinics to general hospitals, multi-specialty hospitals, cancer hospitals, training institutes/colleges, pharmacies etc., and is a pioneer in the field of treatment of various ailments. It is further averred that the trademarks Apollo and Apollo Pharmacy are registered in favour of the plaintiff, both individually and jointly with other marks, exclusively in favour of the plaintiff and no other person is entitled to use the registered trademark Apollo and Apollo Pharmacy or visually, phonetically, structurally or deceptively similar to the registered trademarks, in connection with medical services and goods including pharmaceutical goods and services and the dispensation thereof, whether directly or with any prefix or suffix or in combination with any other characters, words or devices. It is the specific case of the plaintiff that the defendant called itself as Mahesh Apollo Pharmacy and rendering it's services under the name and style of Mahesh Apollo Pharmacy and it is apparent from the defendant's signboard that the word Mahesh is sidelined and the word Apollo Pharmacy is prominently displayed.
1.2. It is also stated by the plaintiff that in all its hospitals, pharmacies and allied services, the registered trademark Apollo has been used by the plaintiff and in the State of Andhra Pradesh also, the plaintiff is running Apollo General and Specialty Hospital, Apollo Clinic/Diagnostic Centres and there are nearly 350 Apollo Pharmacies in multiple prominent locations. It is the specific case of the plaintiff that the defendant with malafide intention of usurping the trade name and trademark and the enormous goodwill associated with the plaintiff's trademark Apollo and Apollo Pharmacy, has wilfully and wantonly used a structurally, visually, phonetically and deceptively similar mark to the plaintiff's registered trademark Apollo and Apollo Pharmacy and the defendant simply by adding few characters with the words Apollo Pharmacy, seeks to gain enormous goodwill earned by the plaintiff on account of the said trademark and the said act of the defendant is nothing but fraudulent and prays for a judgment and decree restraining the defendant in any manner infringing the plaintiff's trademark and passing of the goods by using the plaintiff's trademark Apollo, Apollo Pharmacy and Apollo Hospital as they were deceptively similar marks and other consequential benefits.
2. The learned Master recorded the fact that despite completion of service, the defendant did not enter appearance and directed the listing of the matter before this Court and accordingly it was listed on 18.12.2015 and on that day, the defendant neither entered appearance nor filed the written statement and therefore, the defendant was called absent and set exparte and evidence was recorded by the learned Additional Master No.II and Thiru.S.M.Mohan Kumar, Legal Manager of the plaintiff company, in pursuant to resolution passed by the Board of Directors dated 11.05.2003, marked as Ex.P1, has filed a proof affidavit in lieu of chief examination and also marked Exs.P1-P16.
3. The learned counsel appearing for the plaintiff has drawn the attention of this Court to the pleadings, oral and documentary evidence and would submit that Exs.P2 to P13 are the Trademark Registration Certificates of Apollo Pharmacy and Apollo Hospitals etc. and further invited the attention of this Court to Ex.P14- Photos of the defendant's signboard and would submit that in the said signboard the word Mahesh has been sidelined and the word Apollo Pharmacy has been prominently displayed and therefore, the defendant is to be restrained by granting a judgment and decree as prayed for.
4. This Court has carefully considered the rival submissions and also perused the pleadings, oral and documentary evidence as well as other materials.
5. The following questions arises for consideration and adjudication:
(I) Whether plaintiff is the registered trademark holder of Apollo, Apollo Pharmacy and Apollo Hospital?
(II) Whether the defendant has deceptively adopted the plaintiff's name and registered trademark in respect of pharmaceutical and medical services?
(III) Whether the plaintiff is entitled to get a judgment and decree as prayed for?
(IV) To what other reliefs, the plaintiff is entitled?
Issue No.1
6. Exs.P2 to P13 are the Trade Mark Registration Certificates issued by the Trademark Registry for various classes in respect of Apollo Hospitals and Apollo Pharmacy and it is the specific case of the plaintiff that the plaintiff started using the name Apollo as early as in the year 1988 and due to quality service rendered, had developed very good goodwill and the defendant, in order to take advantage of the same, started running pharmacies in the name of Mahesh Apollo Pharmacy and as per Ex.P14- photograph of the defendant's signboard, the word Mahesh has been sidelined and the word Apollo Pharmacy has been prominently displayed and both are almost with similar colour background and therefore, the defendant is to be restrained by passing a judgment and decree. This Court finds considerable force in the submission made by the learned counsel appearing for the plaintiff that the plaintiff is the registered Trademark holder right from the year 2007 and apart from it, also claims to be using the same right from the year 1988. In the light of the same, the plaintiff is entitled to get protection.
7. Therefore, Issue No.1 is answered in affirmative in favour of the plaintiff.
Issue No.2
8. As already pointed out, the defendant did not choose to enter appearance and as a consequence, did not take the stand that it is using the said trademark even much earlier to that of the plaintiff. It is the case of the plaintiff that they are using the word Apollo right from the year 1988 and got registration certificates during the years 2007-2009 respectively. A perusal of Ex.P14 photograph of the defendant's signboard would disclose that the defendant had fraudulently adopted similar trademark of the plaintiff by sidelining the words Mahesh and prominently displaying the words Apollo Pharmacy.
9. Therefore, Issue No.2 is answered in affirmative in favour of the plaintiff.
Issue No.3
10. The plaintiff, through overwhelming oral and documentary evidence, had probablised it's case. Therefore, Issue No.3 is answered in affirmative in favour of the plaintiff.
Issue No.4
11. In view of the reasons assigned by this Court in respect of Issue Nos.1 to 3, Issue No.4 is answered accordingly.
12. In the result, there shall be a judgment and decree for
(a) Permanent Injunction restraining the defendant, its men, agents, partner, associate, officer, representative, servant and all other persons acting on defendant's behalf from in any manner infringing the plaintiff's registered Trade Mark Apollo, Apollo Pharmacy, and Apollo Hospital either directly or by using any structurally, visually, phonetically and deceptively similar mark to the plaintiff's trademark Apollo, Apollo Pharmacy, and Apollo Hospital;
b) Permanent injunction restraining the Defendant, its men, agents, partner, associate, officer, representative, servant and all other persons acting on defendant's behalf from in any manner passing off goods and services as that of the plaintiff's by either using the plaintiff's trademark Apollo, Apollo Pharmacy, and Apollo Hospital or any structurally, visually, phonetically or deceptively similar mark to the plaintiff's trademark Apollo, Apollo Pharmacy, and Apollo Hospital;
(c) Permanent injunction retraining the Defendant, its men, agents, partner, associate, officer, representative, servant and all other persons acting on defendant's behalf from in any manner using the name/mark Apollo and Apollo Pharmacy by themselves or in combination with other characters or words in connection with any pharmaceutical establishment operated, or pharmaceutical services, rendered by the defendant;
(d) The defendant be directed to surrender to the plaintiff all materials, media etc., whether for invoicing, advertising or any other purpose which contain or bear the plaintiff's registered trademark or any structurally, visually, phonetically or deceptively similar mark to the plaintiff's trademark Apollo and Apollo Pharmacy;
(e) The Defendant be directed to render accounts of profits of the defendant in favour of the plaintiff to examine and ascertain the profits made by the defendant, and thereafter on enquiry final decree be passed and or an order for rendition of accounts of profits made by the defendant by using the mark Apollo and Apollo Pharmacy or any structurally, visually, phonetically or deceptively similar mark to the plaintiff's trademark Apollo and Apollo Pharmacy towards damages as and when ascertained to be awarded to the plaintiff and against the defendant on account of use of the offending trademark;
(f) the plaintiff is also entitled to cost of the Suit.
12.04.2016 Index : Yes / No Internet : Yes / No jvm List of Witnesses:
PW1 : S.M.Mohan Kumar List of Exhibits:
Exhibits Description of Documents Date Ex.P1 The original extract from the minutes of the meeting of the Board of Directors held on 11.05.2003
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Ex.P2 The photocopy of the Trade Mark Registration certificate under No.1576795 06.07.2007 Ex.P3 The photocopy of the Trade Mark Registration certificate is under No.1576790 06.07.2007 Ex.P4 The photocopy of the Trade Mark Registration certificate is under No.1718084 05.08.2008 Ex.P5 The photocopy of the Trade Mark Registration certificate is under No.1718078 05.08.2008 Ex.P6 The photocopy of the Trade Mark Registration certificate is under No.1718086 05.08.2008 Ex.P7 The photocopy of the Trade Mark Registration certificate under No.1785330 16.02.2009 Ex.P8 The photocopy of the Trade Mark Registration certificate under No.1785333 16.02.2009 Ex.P9 The photocopy of the Trade Mark Registration certificate under No.1736922 16.02.2009 Ex.P10 The photocopy of the Trade Mark Registration certificate under No.1576796 06.07.2007 Ex.P11 The photocopy of the Trade Mark Registration certificate under No.1804010 08.04.2009 Ex.P12 The photocopy of the Trade Mark Registration certificate under No.1576797 06.07.2007 Ex.P13 The photocopy of the Trade Mark Registration certificate under No.1576799 06.07.2007 Ex.P14 The colour photographs (2 Nos) of defendant's sign Board
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Ex.P15 The colour xerox of commemorative stamp issued in the name of the plaintiff
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Ex.P16 The office copy of the legal notice 18.04.2014 12.04.2016 M.SATHYANARAYANAN. J jvm C.S.No.724 of 2014 12.04.2016