Delhi High Court - Orders
Cipla Limited vs Bioxen Health Care & Anr on 28 May, 2024
$~22
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CS(COMM) 456/2024, I.A. 30684/2024, I.A. 30685/2024, I.A.
30686/2024, I.A. 30687/2024 & I.A. 30688/2024
CIPLA LIMITED ..... Plaintiff
Through: Mr. Pravin Anand, Ms. T. Malhotra,
Ms. Y. Jaswal, Advocates.
versus
BIOXEN HEALTH CARE & ANR. ..... Defendants
Through:
CORAM:
HON'BLE MR. JUSTICE ANISH DAYAL
ORDER
% 28.05.2024 I.A. 30685/2024 (Seeking leave to file Additional Documents)
1. The present application has been filed on behalf of the plaintiff under Order 11 Rule 1(4) of the Code of Civil Procedure, 1908 ("CPC") as applicable to commercial suits under the Commercial Courts Act, 2015 seeking to place on record additional documents.
2. The plaintiff, if it wishes to file additional documents at a later stage, shall do so strictly as per the provisions of the Commercial Courts Act, 2015 and the Delhi High Court (Original Side) Rules, 2018.
3. Accordingly, the present application is disposed of.
I.A. 30686 /2024 (Exemption from pre-institution mediation)
1. Having regard to the facts of the present case and in light of the This is a digitally signed order.
The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 03/06/2024 at 21:17:56 judgement of Division Bench of this Court in Chandra Kishore Chaurasia v. R.A. Perfumery Works Private Ltd., FAO (COMM) 128/2021, exemption from attempting pre institution mediation is allowed. Accordingly, the application stands disposed of.
I.A. 30687/2024 (Exemption from filing certified, typed copies of dim annexures etc).
1. Exemption is granted, subject to all just exceptions.
2. Applicant shall file legible, clear, and original copies of the documents on which the applicant may seek to place reliance before the next date of hearing.
3. Accordingly, the present application is disposed of.
I.A. 30688/2024(Application for extension from filing court fees)
1. This application has been filed under Section 149 of Code of Civil Procedure, 1908 by plaintiff for extension from filing Court fees.
2. In view of the reasons stated in the application, the said application is allowed and disposed of.
CS(COMM) 456/2024
1. Let the plaint be registered as a suit.
2. Upon filing of process fee, issue summons to the defendants by all permissible modes. Summons shall state that the written statement(s) be filed by the defendants within 30 days from the date of receipt of summons. Along with the written statement(s), the defendant shall also file affidavit(s) of admission/denial of the documents of the plaintiff, without which the written This is a digitally signed order.
The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 03/06/2024 at 21:17:56 statement shall not be taken on record. Liberty is given to the plaintiff to file a replication within 30 days of the receipt of the written statement(s). Along with the replication, if any, filed by the plaintiff, affidavit(s) of admission/denial of documents filed by the defendant, 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.
3. List before the Joint Registrar (Judicial) for marking of exhibits on 30th August, 2024.
4. It is made clear that any party unjustifiably denying documents would be liable to be burdened with costs.
I.A. 30684 /2024 (Application Under Order XXXIX Rules 1& 2 of CPC).
1. This application has been filed under Order XXXIX Rules 1 and 2 of CPC as part of the accompanying suit filed by plaintiff seeking decree of permanent injunction restraining defendants and all those acting for/on their behalf from manufacturing, selling, promoting dealing directly or indirectly dealing in medicinal products 'BUDECORT RESPULES' or 'BUDECORT' or RESPULES' and/or any other marks that are identical or deceptively similar to plaintiff's registered trademark 'BUDECORT RESPULES' or 'BUDECORT' or 'RESPULES' and other attendant reliefs.
2. Plaintiff company was incorporated under the Companies Act, on August, 17, 1935 and has been carrying on business in health and personal care products.
3. Plaintiff claims to be one of the largest private sector pharmaceutical and This is a digitally signed order.
The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 03/06/2024 at 21:17:56 healthcare companies in India and has commercial presence in over 80 countries.
4. Plaintiff claims exclusive rights in the use of the mark 'BUDECORT' for its products, especially its respiratory products. The said mark was first adopted by plaintiff in the year 1993, and a certificate of registration was granted in its favour in the year 2007 in class 5 for pharmaceutical and medicinal preparations.
5. The term 'BUDECORT' is a coined term and plaintiff has acquired a statutory recognition for its 'BUDECORT' mark in at least 15 countries.
6. The screenshot of the use of the brand on plaintiff's 'BUDECORT' product is as under: -
7. Plaintiff's 'BUDECORT' mark has the following trademark registration in India:
This is a digitally signed order.
The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 03/06/2024 at 21:17:56
8. Plaintiff has secured the following trademark registrations globally:
This is a digitally signed order.
The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 03/06/2024 at 21:17:56
9. Plaintiff coined and adopted the mark 'RESPULE' in the year 1993 for its range of products comprising of capsules for respiratory illnesses. The registration is as under:
10. Plaintiff uses 'RESPULE' trademark on various products being 'BUDECORT RESPULES', 'DUOLIN RESPULES', 'FORACORT This is a digitally signed order.
The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 03/06/2024 at 21:17:56 RESPULES', 'BUDESOL RESPULES', 'LEVOLIN RESPULES', 'FLOHALE RESPULES', 'IPRAVENT RESPULES', 'INHALEX RESPULES', 'ASTHALIN RESPULES', 'GLYCOHALE RESPULES', etc.
11. The sales for the 'BUDECORT' product in India as claimed by plaintiff are as under:
12. The sales from the products sold under 'RESPULE' trademark of This is a digitally signed order.
The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 03/06/2024 at 21:17:56 plaintiff, are as under: -
13. The grievance is against defendants who are advertising and marketing products under the name 'Budecot Respules' which is virtually identical to plaintiff's product. Defendant's product is also a nebuliser suspension containing 'Budesonide'.
14. The pictorial extracts of defendants' products are as under: -
This is a digitally signed order.
The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 03/06/2024 at 21:17:57 This is a digitally signed order.
The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 03/06/2024 at 21:17:57
15. The said products of defendants are being advertised on their website www.bioxenhealthcare.com and plaintiff's counsel states that these are available in market and has further, produced a sample as well today for the perusal of the Court.
16. In view of the above facts and circumstances, this Court is satisfied that plaintiff has made out a prima facie case for grant of an ex parte ad interim injunction till the next date of hearing. Balance of convenience lies in favour of plaintiff, and they are likely to suffer irreparable harm in case the injunction, as prayed for, is not granted.
17. Accordingly, till the next date of hearing, following reliefs are granted in favour of plaintiff and against defendants:
a) Defendants and all those acting for/on their behalf are restrained from manufacturing, selling, promoting dealing directly or indirectly in any manner with goods under the mark 'BUDECOT RESPULES' for any goods and/or services using the trademark deceptively similar or identical and/or similar to plaintiffs 'BUDECORT', 'BUDECORT RESPULES' and 'RESPULES' and any other mark deceptively similar to that of plaintiff.
b) Defendant shall file an affidavit disclosing the amount and value of sales since launch of its products and include the quantities which are available with them in stock currently. The affidavit shall be filed within a period of two weeks with copies to counsel for plaintiff.
18. Upon plaintiff taking steps, issue notice through all permissible modes, including through email, returnable before the Court on 03rd October 2024. Affidavit of service along with proof thereof be placed on record before the This is a digitally signed order.
The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 03/06/2024 at 21:17:57 next date of hearing.
19. Reply be filed within six weeks with advance copy to counsel for plaintiff, who may file rejoinder thereto, if so desired, before the next date of hearing.
20. Compliance of Order XXXIX Rule 3, CPC be effected within a week.
ANISH DAYAL, J MAY 28, 2024/RK/na This is a digitally signed order.
The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 03/06/2024 at 21:17:57