Delhi District Court
Mankind Pharma Ltd vs M/S Humankind on 27 July, 2013
IN THE COURT OF MS. NEELAM SINGH, ADJ02 (SOUTH),
SAKET COURTS COMPLEX, NEW DELHI.
TM No. 133/2011
Unique Case ID No. 02406C0264632011
Mankind Pharma Ltd.
236, Okhla Industrial Estate,
PhaseIII, New Delhi.
...Plaintiff
Versus
M/s Humankind
SPOB2/3,
Digjam Staff Colony,
Aerodrome Road, Jamnagar361006.
...Defendant
Suit presented on : 14.10.2011
Arguments heard on : 27.07.2013
Judgment pronounced on : 27.07.2013
SUIT FOR PERMANENT, MANDATORY INJUNCTION AND
DAMAGES.
E X-P A R TE JU D G M E N T
1.Vide this judgment, I shall dispose off suit for permanent, mandatory injunction and damages filed by plaintiff company against the defendant.
2. It is submitted that plaintiff company is the owner of trade mark TM No. 133/2011 Page No. 1 of 4 MANKIND and the plaintiff's medicinal and pharmaceutical preparations under the trade mark MANKIND, is having sold throughout India.
3. It is further submitted that the defendant is also using the trade mark HUMANKIND in respect of medicine which is confusingly identical and similar to the trade mark of plaintiff.
4. It is further submitted that the plaintiff company in the month of May, 2011 came to know about the product of the defendant with the trademark HUMANKIND. It is further submitted that defendant always tend to take advantage of the publicity done by the plaintiff.
5. It is further submitted that there is no plausible reason as to why the defendant chose to use the trademark HUMANKIND for its product.
6. It is further submitted that the trade mark used by defendant is identical and deceptively similar to that of the plaintiff company and hence, the defendant be restrained from using the trade mark HUMANKIND. Hence, the present suit.
7. Summons in the suit were issued to defendant, however, defendant could not be served through ordinary post and accordingly, the defendant was directed to be serve through substituted means i.e. TM No. 133/2011 Page No. 2 of 4 publication in the newspaper having wide circulation in the area where defendant is residing and carrying on his business for gains.
8. The defendant was served through publication in the newspaper 'Jai Hind' Gujarat edition dated 03.03.2013, despite that none appeared on behalf of defendant and hence, the defendant was proceeded exparte vide order dated 22.03.2013 and matter was fixed for exparte plaintiff's evidence.
9. Plaintiff led exparte evidence and examined Sh. Sanjeev Kumar Singh, Company Secretary (PW1) by way of affidavit (Ex.PW1/A) reiterating the facts of the case and placed reliance on following documents:
i. Original board resolution dated 19.08.2011 Ex.PW1/1; ii. Memorandum and Articles of Association Ex.PW1/2 (colly); iii. Photocopy of registration certificate of trademark No. 1414061 Ex.PW1/3 (OSR);
iv. Photocopy of registration certificate of trademark No. 1279760, 657871, 1279762, 1279761 & 1414060 Ex.PW1/4 (colly) (OSR); and v. Photocopies of Balance Sheet and Profit & Loss Account for the period 20082009, 20092010 and 20102011 Ex.PW1/5 TM No. 133/2011 Page No. 3 of 4 (colly) (OSR).
10. Arguments heard. Record perused.
11. Nothing has been placed on record in order to prove that defendant is using the trade mark HUMANKIND. No witness has been examined to the effect that HUMANKIND and MANKIND are confusingly and deceptively similar.
12. Nothing has also been placed on record by the plaintiff that by use of trade mark HUMANKIND by the defendant, the plaintiff has suffered losses in his business.
13. I am aware of this fact that plaintiff is a registered owner of trade mark MANKIND, but the allegations levelled against the defendant have not been proved by the plaintiff during the course of evidence and remains averments only. Accordingly, I am of this opinion that no relief can be granted to the plaintiff and hence, the suit is dismissed. No order as to cost. File be consigned to record room after necessary compliance.
Announced in the open Court.
(NEELAM SINGH) ADJ02 (SOUTH), SAKET, NEW DELHI 27.07.2013/ TP TM No. 133/2011 Page No. 4 of 4 TM No. 133/2011 M/s Mankind Pharma Ltd. v. M/s Humankind 27.07.2013 Present: Counsel for plaintiff.
Defendant was proceeded ex-parte vide order dated 08.04.2011.
Vide my separate judgment of even date, the suit of the plaintiff is dismissed. No order as to cost. Decree sheet be drawn up accordingly. File be consigned to record room after necessary compliance.
(NEELAM SINGH) ADJ-02 (SOUTH), SAKET, NEW DELHI 27.07.2013/ TP TM No. 133/2011 Page No. 5 of 4