Delhi High Court - Orders
Antex Pharma Pvt Ltd & Anr vs Elder Projects Ltd & Anr on 28 February, 2024
Author: Sanjeev Narula
Bench: Sanjeev Narula
$~67
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CS(COMM) 178/2024
ANTEX PHARMA PVT LTD & ANR. ..... Plaintiffs
Through: Mr. Sudhir Chandra, Senior Advocate
with Mr. Aditiya Nayyar, Mr. Aashu
Pali, Mr. Rishabh Verma, Advocates.
versus
ELDER PROJECTS LTD & ANR. ..... Defendants
Through: None.
CORAM:
HON'BLE MR. JUSTICE SANJEEV NARULA
ORDER
% 28.02.2024 I.A. 4735/2024 (from filing the originals and clearer / typed copies, illegible in nature of the said documents)
1. Exemption is granted, subject to all just exceptions.
2. Plaintiffs shall file legible and clearer copies of exempted documents, compliant with practice rules, before the next date of hearing.
3. Accordingly, the application stands disposed of.
CS(COMM) 178/2024
4. Let the plaint be registered as a suit.
5. Upon filing of process fee, issue summons to the Defendants by all permissible modes. Summons shall state that the written statement shall be filed by the Defendant within 30 days from the date of receipt of summons. Along with the written statement, the Defendants shall also file an affidavit 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 01/03/2024 at 22:54:44 of admission/denial of the documents of the Plaintiffs, without which the written statement shall not be taken on record.
6. Liberty is given to the Plaintiffs to file a replication within 15 days of the receipt of the written statement. Along with the replication, if any, filed by the Plaintiffs, an affidavit of admission/denial of documents of the Defendants, be filed by the Plaintiffs, without which the replication 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.
7. List before the Joint Registrar for marking of exhibits on 1st May, 2024. It is made clear that any party unjustifiably denying documents would be liable to be burdened with costs.
8. List before Court for framing of issues thereafter.
I.A. 4734/2024 (under Order XXXIX Rules 1 & 2 read with Section 151 CPC for ex-parte injunction)
9. Mr. Sudhir Chandra, Senior Counsel representing the Plaintiff presents the following facts and contentions:
9.1. Plaintiff No. 1- Antex Pharma Pvt. Ltd. and Plaintiff No. 2- Elder Wellness are engaged in the marketing and trading of products under the trade name 'ELDER'. Plaintiffs have been selling and trading in a wide range of pharmaceutical products under their trademarks 'ELDER' and 'ELDERVIT'. On account of continuous use and significant marketing/ sales as Plaintiffs' trade name and trademark, the said marks have acquired goodwill and reputation amongst members of trade and the public at large. 9.2. Plaintiffs' grievance arises from the illegal threats received from the Defendants in relation to the impugned mark 'ELDER'. Defendants are 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 01/03/2024 at 22:54:44 threatening the Plaintiffs and their manufacturers with legal action, asserting that they have proprietary rights over the trademark 'ELDER' and therefore are entitled to restrain the Plaintiffs from using the said mark. 9.3. The Defendants unlawfully filed complaints with the Office of the Drug Controller General of India (DCGI) to conduct raids on the Plaintiffs. In fact, at the behest of Defendant No. 2, the DCGI has already raided the premises of some of the Plaintiffs' manufacturers, namely, SVP Life Sciences on 12th February, 2024 and T&G Medicare on 14th February, 2024. During the raids, the drug officers illegally and under duress obtained undertakings from the said manufactures that they would refrain from manufacturing products relating to the marks 'ELDER' & 'ELDERVIT' in the future. The said undertakings were then emailed to the Office of DCGI with a copy marked to the personal email address of Defendant No. 2. 9.4. The Defendants have also disseminated false information through an article published on 19th February 2024, through News18, wherein they assert ownership of the contested trademarks and allege unauthorized usage of their company name and their brands, 'ELDER' and 'ELDERVIT'. The assertions presented in the aforementioned article are both unfounded and fabricated, serving as a deliberate attempt to misconstrue the Defendants' purported rights to the trademarks in question and to levy baseless threats against other third parties. The pertinent excerpts from the said article are reproduced below:
"The originator of the top-selling calcium supplement brand Shelcal -which was sold to pharma giant Torrent in 2014 - Elder Pharmaceuticals is now known as Elder Project Limited.
In a letter written to the chief of CDSCO, the Drug Controller General of India (DCGI) in December, Elder's managing director Anuj Saxena sought 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 01/03/2024 at 22:54:44 assistance in "stopping the illegal use of the company name and logo, and products by small traders."
9.5. The Defendants do not possess any right over the trademark 'ELDER', which is in fact registered in the name of another company- Elder Pharmaceuticals Ltd. By way of judgment dated 5th April, 2019, this Court has declared that the trademark 'ELDER' belongs only to Elder Pharmaceuticals Ltd., which company is presently in liquidation. The said judgment has not been assailed and thus has attained finality. In light of this judgment, the Defendants certainly cannot assert any proprietary claim over the trademark 'ELDER'. Rather, only Elder Pharmaceuticals Ltd., through the Official Liquidator who is in custody of said company's assets, would be permitted to raise any grievance regarding the Plaintiffs' use of the trademark 'ELDER'.
9.6. In such circumstances, considering the groundless nature of the threats extended by the Defendants, the Plaintiff is entitled to seek injunction against such threats under Section 142 of the Trade Marks Act, 1999 ["Act"].
10. The Court has considered the aforenoted submissions and prima facie finds merit in the same. Pertinently, it must be noted that Defendant No. 1 acted as the plaintiff in another suit [CS(COMM) 1313/2018] titled 'Elder Projects Ltd. & Anr. v. Elder Pharmacia LLP & Ors.', wherein the trademark in dispute was also 'ELDER'. Through a judgment dated 5th April, 2019, the Court categorically held as follows:
"Who is the owner of the trademark 'ELDER' and /or ELDER Logos?
19. The trademarks 'ELDER' or 'ELDER' logo that are subject matter of the present suit are registered trademarks. The Plaintiffs concede that the proprietor of the said registered trademark is the Company in liquidation-
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 01/03/2024 at 22:54:44 EPL. The said registrations in favour of EPL are presently valid, renewed and in force. Thus, there cannot be any gainsay that it is EPL who is the registered Proprietor of the trademark 'ELDER' and 'ELDER' logo in India and has the exclusive right to use the said trademark."
[Emphasis Supplied]
11. This finding unequivocally establishes that the ownership and exclusive right to use the 'ELDER' trademark and logos rest with Elder Pharmaceuticals Limited (referred to as 'EPL' in the above extract), which contradicts the Defendants' claims in the disputed article. Therefore, Defendant No. 1 cannot assert rights over the trademark 'ELDER' and seek to restrain other entities from using the said trademark. The news article placed on record suggests that Defendant No. 1, through their Managing Director (Defendant No. 2), are acting in a manner which is contrary to the findings rendered by this Court in the aforenoted judgment.
12. In view of the above, in the opinion of the Court, Plaintiffs have made out a prima facie case in their favour, and in case Defendants are not restrained from making groundless threats, irreparable loss would be caused to the Plaintiffs; balance of convenience also lies in favour of the Plaintiffs and against the Defendants.
13. Accordingly, till the next date of hearing, Defendants and/or anybody acting on their behalf are restrained from making any groundless threats of legal proceedings against the Plaintiffs and their representatives in relation to use of the trademark 'ELDER' and 'ELDERVIT'.
14. It must be expressly understood that this interim direction is not to be interpreted as an endorsement by the Court of the Plaintiffs' entitlement to utilize the 'ELDER' trademark and/or any of its derivative marks. Additionally, this order shall not obstruct the Drug Controller General 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 01/03/2024 at 22:54:44 India (DCGI) or any regulatory authority from executing any lawful measures should the Plaintiffs engage in any activities that contravene regulatory standards or legal provisions.
15. List before the Court on 30th July, 2024.
SANJEEV NARULA, J FEBRUARY 28, 2024 ab 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 01/03/2024 at 22:54:44