Delhi District Court
Dev Pharmacy Pvt Ltd vs Shri Ganesh Enterprises on 11 October, 2023
IN THE COURT OF SH. REETESH SINGH, DISTRICT JUDGE
COMMERCIAL COURT-04, SHAHDARA,
KARKARDOOMA COURTS, DELHI
CNR No. DLSH01-007900-2020
CS (Comm) No. 584/20
In the matter of :-
M/s Dev Pharmacy Pvt. Ltd.
E-17A, Sector -8, Noida,
Uttar Pradesh-201301
............Plaintiff
(Through Ld. Counsel Sh. Vibhor Sethi)
Versus
Shri Ganesh Enterprises
Through one of its partners, Shri. Dalchand Lodhi
63/2, Kumawatpura Dargah Eali Multi,
Juni, Indore, Madhya Pradesh-452007
Also At:-
128, Teli Gaon, H. No. 1 to 150
Village Teliganv, Tehsil Chachoda,
District Guna (M.P.)-4753115 --------Defendant
(Defendant is ex-parte)
Date of institution of the case : 16.12.2020
Date of final arguments : 04.10.2023
Date of judgment : 11.10.2023
EX-PARTE JUDGMENT
1.The plaintiff M/s Dev Pharmacy Private Limited has filed this suit against M/s Ganesh Enterprises praying for the following reliefs:-
• Decree for permanent injunction to restrain the defendant from using the impugned trademark / label / packaging / trade dress or any other CS (Comm) No.584/20 1 word /mark/label which may be identical with or deceptively similar to the plaintiff's trademark / label / packaging / trade dress PAURUSH JIWAN, PERFECT and PERFECT CAPSULE in relation to their impugned goods and business of pharmaceuticals and medicinal preparations and doing any other acts amounting to or likely to infringe the registered trademarks of the plaintiff PAURUSH JIWAN, PERFECT and PERFECT CAPSULE;
• Decree for permanent injunction to restrain the the defendant from passing off their goods by using the Mark of the plaintiff PAURUSH JIWAN, PERFECT and PERFECT CAPSULE or any other Mark identical or deceptively similar to the plaintiff's Mark PAURUSH JIWAN, PERFECT and PERFECT CAPSULE ;
• Decree for permanent injunction to restrain the defendant from infringing the copyright of the plaintiff in its trademark / label / packaging / trade dress PAURUSH JIWAN, PERFECT and PERFECT CAPSULE ;
• Decree to restrain the defendant from disposing of their assets and their stocks in trade as may be brought to the notice of the court during the course of the proceedings;
• An order for delivery by the defendant to the plaintiff all the offending goods bearing the impugned trademark/artistic work including packaging materials, advertising materials, etc. for the purposes of destruction or erasure;
• An order for rendition of accounts of the defendant of business on account of sale of infringing goods by the defendant; and • Costs of the suit.
2. The plaintiff has averred that it is engaged in the business of manufacture and marketing of Ayurvedic Medicinal and Pharmaceutical Preparations under its distinctive trademark / label / packaging / trade dress PAURUSH JIWAN, PERFECT and PERFECT CAPSULE. Plaintiff has averred that it is the Proprietor of the said trademark / label / packaging / trade dress in relation to its business. Plaintiff has in para 3 of the plaint depicted the representation of its trademark / label / packaging / trade dress PAURUSH JIWAN, PERFECT and PERFECT CAPSULE. It is averred that the Mark PAURUSH JIWAN was adopted by Dr. N. G. Dev in the year 1990 and the CS (Comm) No.584/20 2 Marks PERFECT and PERFECT CAPSULE were conceived and adopted in the year 1995 under the trade name and style of M/s Dev Pharmacy. Through passage of time, the business grew and Dr. N. G. Dev along with his wife Smt. Manju Dev incorporated the plaintiff company M/s Dev Pharmacy Private Limited to whom Dr. N. G. Dev assigned the said marks.
3. It is averred that in the year 2000, Dr. N. G. Dev ceased working with his trade name M/s Dev Pharmacy and transferred all his rights in the said marks to the plaintiff company along with copy right and goodwill vide deed of assignment dated 24.04.2006. In para 6 of the plaint, the plaintiff has tabulated the details of its eight registrations of the marks PAURUSH JIWAN, PERFECT and PERFECT CAPSULE with the Registrar of Trade Marks under different classes. It is averred that the products of the plaintiff are packed and offered for sale in capsules with distinctive packaging with unique colour scheme, design, get up and layout. The packaging box consists of black, green and golden colour represented in a special manner. The packaging of the plaintiff's products is original art work of which the plaintiff claims copy right. It I averred that the plaintiff's mark have become distinctive and associated with the business of the plaintiff on account of its long, continuous, extensive and exclusive user since the years 1990 and 1995 respectively. They have acquired vast reputation and goodwill amongst the public and numbers of the trade. Plaintiff has placed on record its year wise sales figures along with the plaint. Products of the plaintiff are displayed on the website of the plaintiff www.devpharmacy.in on which thousands of people look for products of the plaintiff. Plaintiff has averred that the products of the plaintiff are advertised in leading newspapers, trade magazines, trade literature etc.
4. Plaintiff has averred that the defendant is indulging in counterfeiting the products of the plaintiff in complete violation of the common law and statutory rights of the plaintiff in the said marks and copyrights. The CS (Comm) No.584/20 3 impugned trade mark / label / packaging / trade dress adopted by the defendant is depicted in para 21 of the plaint.
5. It is averred that the defendant has illegally used the same in relation to their goods and business which are identical with and similar to the plaintiff's marks in each respect including phonetic, visual, structural and all its essential features. The modus operandi of the defendant is manufacturing and selling inferior quality Ayurvedic products which are replica of the plaintiff's products. The defendant is fully aware of the plaintiff's rights, goodwill and reputation in the market and has illegally adopted the marks of the plaintiff to pass off its products as that of the plaintiff. In this manner, the trade mark of the plaintiff is being diluted and eclipsed. It is averred that a common man not knowing the relationship of the parties to this suit is bound to be confused by the illegal adoption of the defendant of the marks of the plaintiff. A common person is easily misled into believing that the products of the defendant are those of the plaintiff. In para 30 of the plaint, the plaintiff has depicted the product of the plaintiff with its mark PAURUSH JIWAN along with the impugned products of the defendant.
6. It is averred that the defendant is commercially using the impugned marks in the course of trade in relation to its goods. The plaintiff has averred that in December 2020 it came across the impugned goods of the defendant with the marks of the plaintiff. Market inquiry revealed that the defendant had just started using the said mark in relation to its goods. It is stated that the defendant was making clandestine and surreptitious sales with the impugned marks in the markets of Delhi including Shahdara, Vivek Vihar, Anand Vihar, etc. which is within the jurisdiction of this court. The products of the plaintiff are also sold in the jurisdiction of this court and are available OnLine through interactive website of the plaintiff www.devpharmacy.in and its products are also available OnLine on www.flipkart.com and www.amazon.in which can CS (Comm) No.584/20 4 be accessed and operated from all over the country including District Shahdara, Delhi.
7. In these facts and circumstance, the plaintiff filed the present suit in December 2020 along with applications under Order XXXIX Rules 1 and 2 of the CPC and under Order XXVI Rule 9 of the CPC. By order dated 18.12.2020 summons of the suit were issued to the defendant. By the said order ex-parte injunction was granted in favour of the plaintiff restraining the defendant from infringing the registered marks of the plaintiff; passing off their goods and business as that of the plaintiff and from infringing the copyright of the plaintiff in its said marks. Further, a Local Commissioner Sh. Arjun Goel, Advocate was appointed with direction to visit the premises of the defendant to seize the infringing goods and material and to take the same in custody; seize the accounts books, ledger, etc of the defendant; and to serve summons of the suit and notice of the applications upon the defendant.
8. The commission was carried out by the Ld. Local Commissioner who placed on record his report. In the same, Ld. Local Commissioner has recorded that he carried out the commission on 14.01.2021 and found Sh. Dal Chand Lodhi at the premises who claimed himself to be the partner of M/s Ganesh Enterprises. He was informed of the order dated 18.12.2020. During the commission Ld. Local Commissioner has found PAURUSH JIWAN and PERFECT CAPSULES similar to that of the trade mark of the plaintiff. He seized the counterfeit products and took the same in his custody. The report of the Ld. Local Commissioner is on the record.
9. On 01.03.2021, Sh. Mohit filed vakalatnama on behalf of the defendant and was granted time to file written statement. As the defendant did not appear thereafter and no written statement was filed, right of the defendant to do so was closed by order dated 08.12.2021 and defendant was proceeded ex- parte. The plaintiff led evidence and examined Sh. Sanjay Kumar Jha as PW-1 CS (Comm) No.584/20 5 who deposed by way of his affidavit Ex.PW-1/A. He placed reliance on the following documents:-
(a) Copy of Representation of registered trademark/label of the plaintiff vide Ex.PW-1/1.
(b) Copy of Representation of the impugned Trademark/label of the Defendant vide Ex.PW-1/2.
(c) Copy of Screenshot of the webpage/URL/weblink of the plaintiff displaying/soliciting trademark/label "Parush Jiwan & Perfect"
vide Ex.PW-1/3.
(d) Copy of the Legal Proceedings Certificates vide Ex.PW-1/4 (Colly)
(e) Copy of Registration Certificates and their latest status reports of some of the Registered Trademark/label of the plaintiff vide Ex. PW-1/5 (Colly).
(f) Copy of NOC Copyright Certificates of plaintiff vide Ex.PW-
1/6.
(g) Photocopy of Drug License of the plaintiff vide Ex.PW-1/7 (OSR).
(h) Copies of the sale figure of the plaintiff vide Ex.PW-1/8.
(i) Copy of Invoices/Sales Bill dated 18.10.2019, 18.02.2019, 19.02.2020, 12.07.2018, 20.09.2018, 29.07.2017, 22.07.2017,
10.12.2016 and 11.11.2016 vide Ex.PW-1/9 (Colly).
(j) Copy of Article and Memorandum of Association vide Ex.PW-
1/10 (OSR).
(k) Copy of Board of Resolution in favour of Sh. Sanjay Kumar Jha vide Ex.PW-1/11 (OSR).
(l) Certificate under Section 65 B of Evidence Act vide Ex.PW-
1/12 bearing my signatures at Points A and B.
(m) Declaration under Order XI Rule 6 CPC pertaining to electronic records vide Ex.PW-1/13 bearing the signatures of previous AR Sh. Ravinder Kumar Vishwas at points A and B. I have worked with Sh. Ravinder Kumar Vishwas and have seen him sign.
10. As the defendant was ex-parte, PW-1 was not subjected to any cross- examination. The plaintiff therefore closed his evidence.
11. Arguments were addressed on the suit by Sh. Vibhor Sethi, Ld. Counsel for the plaintiff who submitted that the averments of the plaintiff in the plaint and evidence led had gone unrebutted and unchallenged. He submitted that the plaintiff was therefore entitled to the decree as prayed for. He submitted CS (Comm) No.584/20 6 that previously Ld. Predecessor of this court had raised queries regarding territorial jurisdiction of this court to entertain the plaint. In this regard he submitted that as the defendant failed to defend the suit and was proceeded ex-parte, there is no objection on the record with respect to this court not having territorial jurisdiction to entertain the suit. He relied on Section 21 (1) of the CPC and contended that where such objection has not been raised at the earliest opportunity before the court of first instance, and in all cases where issues are settled, on or before such settlement, no such objection can be raised subsequently. He relied on the judgments of the Hon'ble Supreme Court in the cases of Sneh Lata Goel Vs. Pushplata AIR 2019 SC 824, Hira Lal Vs. Kalinath MANU/SC/0041/1961 and Harshad Chiman Lal Modi Vs. DLF Universal Ltd. MANU/SC/0710/2005. He further submitted that even otherwise the defendant has not denied the averments of the plaintiff regarding availability of the products of the plaintiff in the markets within Shahdara District.
12. I have heard the Ld. Counsel for the plaintiff and have perused the record of the case. Defendant despite service did not file any written statement. The averments of the plaintiff and evidence led has gone unrebutted and unchallenged.
13. As far as territorial jurisdiction of this court to entertain the plaint is concerned, the plaintiff has averred that the impugned goods of the defendant are available in the markets in Shahdara District. Defendant has not filed any written statement disputing the same. The averments have, therefore, gone unrebutted. No objection has been raised by the defendant on the territorial jurisdiction of this court to entertain the plaint. In view of the provisions of Section 21 (1) of the CPC and the observations of the Hon'ble Supreme Court in the cases of Sneh Lata Goel Vs. Pushplata, Hira Lal Vs. Kalinath and Harshad Chiman Lal Modi Vs. DLF Universal Ltd. (supra), there is no impediment for this court to entertain the plaint.
CS (Comm) No.584/20 714. Ex.PW-1/5 (Colly) are the documents of the plaintiff pertaining to the registrations and certificates of its trade marks. The copyright certificate of the plaintiff is Ex.PW-1/6. The drug license of the plaintiff is Ex.PW-1/7 and its sales figures Ex.PW-1/8 reflect sales figures of Rs. 33,54,15,693/- for the year 2019-2020. The sales invoices of the plaintiff are Ex.PW-1/9 (Colly). The plaintiff has registrations of the marks PAURUSH JIWAN, PERFECT, PERFECT CAPSULE in its favour. It has copyright of the label PAURUSH JIWAN vide Ex.PW-1/6. The marks of the plaintiff are depicted in the plaint vide Ex. PW-1/1 as under:-
CS (Comm) No.584/20 815. The impugned marks adopted by the defendant are depicted in the plaint vide Ex. PW-1/2 as under:-
16. In the case of Parle Products (P) Ltd. J.P. and Co., Mysore AIR 1972 SC1359 the Hon'ble Supreme Court has held that in order to arrive at the conclusion whether one mark is deceptively similar to another, the broad and essential features of the two are to be considered. It would be enough if the offending mark bears such an overall similarity to the registered mark as would be likely to mislead a person usually dealing with one to accept the other if offered to him. In the case of Laxmikant V. Patel vs. Chetanbhai Shah (2002) 3 Supreme Court Cases 65 the Hon'ble Supreme Court was CS (Comm) No.584/20 9 pleased to hold that the law does not permit anyone to carry on its business in such a way as would persuade customers or clients in believing that the goods or the services belonging to someone else are his or associated therewith. Whether the person who adopts the offending marks has done so fraudulently or otherwise is not material. It was held that honesty and fair play are the basic policies in the world of business. When a person adopts a name in connection with his business or services which already belongs to someone else, it results in confusion and has the propensity of diverting the customers and clients of someone else to himself and thereby resulting in injury. Similarly in the case of Midas Hygiene Industries (P) Ltd. & Anr. vs. Sudhir Bhatia & Ors. (2004) 3 Supreme Court Cases 90 the Hon'ble Supreme Court has held that in cases of infringement either of trade mark or of copyright, normally an injunction must follow.
17. Perusal of the impugned Mark/device/artistic work of the defendant reveals that the same is deceptively similar if not identical to that of the plaintiff. The impugned Mark/device of the defendants is also phonetically similar to the the Mark/device of the plaintiff. The defendants are in the same line of business as of the plaintiff in respect of Ayurvedic Medicinal Products. The plaintiff is thus entitled to grant of the injunctions/ reliefs as prayed for in paras 42 (a) (i), 42 (a) (ii) and 42 (a) (iii) of the plaint.
18. Relief 42 (b) is for a decree to restrain the defendant from disposing of their assets and their stocks in trade as may be brought to the notice of the court during the course of the proceedings. In this regard the plaintiff has not produced any such evidence during the course of proceedings of this suit. Hence, relief 42 (b) is declined.
19. Relief 42 (c) is for an order for delivery by the defendant to the plaintiff of all the offending goods bearing the impugned trademark/artistic work including packaging materials, advertising materials, etc. for the purposes of destruction or erasure. The Ld. Local Commissioner appointed vide order CS (Comm) No.584/20 10 dated 18.12.2020 under Order XXVI Rule 9 of the CPC carried out the commission and submitted his report on the record. As per the same the Ld. Local Commissioner had seized 24 pieces of PAURUSH JIWAN CAPSULES and 24 pieces of PERFECT CAPSULES during the commission. The same were handed over to Sh. Mohit Sharma, Ld. Counsel for the plaintiff on superdari. Accordingly, the prayer made in para 42(c) is allowed. The plaintiff shall carry out destruction of the seized goods.
20. Relief 42 (d) is for rendition of accounts. The defendant is ex-parte. As such the sales figures of the defendant in his absence is not available. In similar circumstances, the Hon'ble High Court of Delhi in the cases of Pepsico Inc Vs. PSI Ganesh Marketing CS (OS) 157/2013 decided on 19.05.2014, Cartier International AG Vs. Gaurav Bhatia CS (OS) 1317/2014 on 04.01.2016 and Christian Louboutin SAS Vs. Ashish Bansal CS (Comm.) 503/2016 on 31.07.2018 has been pleased to hold that the plaintiff can be awarded punitive damages. In the facts and circumstances of this case, I deem it appropriate to grant punitive damages to the plaintiff in the sum of Rs. 2,50,000/- against the defendant. Plaintiff shall also be entitled to costs of the suit.
21. For the reasons recorded above, suit of the plaintiff is decreed in favour of the plaintiff and against the defendant in terms of prayers 42 (a) (i), 42 (a)
(ii), 42 (a) (iii) and 42 (d) of the plaint. Plaintiff is held entitled to recovery of punitive damages in the sum of Rs. 2,50,000/- against the defendant. Costs of the suit are awarded in favour of the plaintiff. Decree sheet be drawn upon deposit of deficient court fees, if any.
22. File be consigned to record room.
Announced in the open (REETESH SINGH)
court on this 11th day DISTRICT JUDGE
of October 2023 (COMMERCIAL COURT)-04
SHAHDARA, KKD COURTS, DELHI
CS (Comm) No.584/20 11