Delhi High Court - Orders
Zydus Wellness Products Limited vs M/S Arihant Remedies & Anr on 11 December, 2023
Author: Prathiba M. Singh
Bench: Prathiba M. Singh
$~38
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CS(COMM) 417/2019 & I.A. 22183/2023
ZYDUS WELLNESS PRODUCTS LIMITED ..... Plaintiff
Through: Mr. Sagar Chandra, Ms. Shubhie
Wahi and Ms. Ankita Seth, Advs.
(M. 9711239881)
versus
M/S ARIHANT REMEDIES & ANR. ..... Defendants
Through: Mr. Umesh Brahmbhatt and Ms.
Supriya R. Pandey., Advs. (M.
9304601534)
CORAM:
JUSTICE PRATHIBA M. SINGH
ORDER
% 11.12.2023
1. This hearing has been done through hybrid mode. I.A.22183/2023 (u/O XXXIX Rule 4 CPC)
2. The present suit has been filed by the Plaintiff - Zydus Wellness Products Ltd. seeking permanent injunction against the Defendant Nos. 1 & 2- M/s. Arihant Remedies and Mr. Mahendra Kotadiya from using the mark 'GLUCOSE-D' and 'GLUCOSE-C'.
3. The Plaintiff is a subsidiary of Zydus Wellness Ltd. which developed the brand Nutralite. As per the Plaint, paragraph 2 the Plaintiff merged with Heinz India Pvt. Ltd. in the year 2019 and became owner of the brands Complan, Nycil, Glucon-D and Sampriti. The brand 'GLUCON-D' was first launched in the year 1933.
4. The Plaintiff has various trademark registrations for the word and label mark 'GLUCON-D' under classes 5, 29, 30 and 32. The Plaintiff also CS(COMM) 417/2019 Page 1 of 5 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 13/12/2023 at 07:17:09 has a copyright in the artistic work of its mark and label 'GLUCON-D' bearing no. A-28441/80.The Plaintiff's sales for the year 2018-2019 has been more than Rs. 476 crores and a substantial amount of Rs. 24 crores has also been invested for promotions of the products bearing the mark 'GLUCON-D'.
5. The Plaintiff became aware of the Defendants' product with the mark 'GLUCOSE-D' and 'GLUCOSE-C' sometime in May , 2019. It is the case of the Plaintiff that the Defendants are using deceptively similar packaging as that of the Plaintiff.
6. Thereafter the present suit has been filed. Vide an order dated 7th August, 2019 an interim injunction was granted in favour of the Plaintiff against the Defendants. The same was confirmed vide order dated 14th September, 2022, in following terms :
"13. Prima facie, they appear to be deceptively similar inasmuch as they are in the same colour scheme; with an inverted triangle; a picture of a happy family and, in fact, as highlighted by the learned counsel for the plaintiff, though the product of the defendant no. 1 is for Vitamin C, it is titled as 'GLUCOSE-D'. The same are pictorially depicted as under:CS(COMM) 417/2019 Page 2 of 5
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 13/12/2023 at 07:17:09
14. As far as the plea of the defendant no. 1 that the plaintiff cannot claim any right as a registered proprietor, the learned counsel for the plaintiff has drawn my attention to the averments made in the paragraph nos. 3 and 4 of the plaint as also the documents filed along with the plaint, to contend that by way of Assignment Deed and the subsequent Scheme of Amalgamation, the rights in the trade marks have now vested in the plaintiff. It is settled law that the rights in the trade mark are not dependent on the name of the proprietor being reflected in the Register of Trade Marks. If a CS(COMM) 417/2019 Page 3 of 5 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 13/12/2023 at 07:17:10 person is otherwise the proprietor of the mark by way of subsequent assignment deed, transfer of the registration in his name is a mere formality.
15. In any case, the plaintiff has also been able to make out a prima facie case of passing off with the similar packaging of the goods. The balance of convenience is also in favour of the plaintiff and against the defendants. The product of the plaintiff being available over the counter, being consumable in nature, with the resemblance of the packaging of the goods of the plaintiff and the defendants, the plaintiff as also the general public is likely to suffer a grave irreparable injury in case the ad-interim injunction granted in favour of the plaintiff is not confirmed.
16. Accordingly, the ad-interim injunction granted In favour of the plaintiff and against the defendants vide order of this Court dated 07.08.2019 shall stand confirmed and shall operate during the pendency of the present suit. It is however, made clear that the above observations of the court are only prima facie in nature and shall not influence the court at the final hearing of the Suit."
7. This is an application filed by the Defendant No. 1 under Order XXXIX Rule 4 CPC, 1908 by which the Defendant No.1 seeks modification/vacation of the order dated 7th August, 2019 and 14th September, 2022.
8. One of the grounds pleaded is that new fresh packaging of the Defendant No.1 'Arihant's GLUCOSE-D' be permitted to be used by the Defendants. The Court has seen the modified label, which is annexed to the application. The same is not in color. Even the mark 'Arihant's' is in very small font. Let the colored copy of modified packaging be served upon the CS(COMM) 417/2019 Page 4 of 5 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 13/12/2023 at 07:17:10 Plaintiff within two weeks, upon which the reply be filed to this application.
9. List before the Joint Registrar for completion of pleadings on 23rd January, 2024. Let the admission/denial of the documents be completed.
10. List before the Court on 30th April, 2024.
PRATHIBA M. SINGH, J.
DECEMBER 11, 2023/dk/ks CS(COMM) 417/2019 Page 5 of 5 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 13/12/2023 at 07:17:10