Delhi High Court
Max Healthcare Institute Limited vs Sahrudya Health Care Private Limited on 29 November, 2017
Author: Mukta Gupta
Bench: Mukta Gupta
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Reserved on: 21st September, 2017
Decided on: 29th November, 2017
+ CS(COMM)866/2016
MAX HEALTHCARE INSTITUTE LIMITED ..... Plaintiff
Represented by: Mr.Sandeep Sethi, Sr.Advocate
with Mr.Manish Dhir,
Advocate
versus
SAHRUDYA HEALTH CARE PRIVATE LIMITED ..... Defendant
Represented by: Mr.Sudhir Chandra Aggarwal,
Sr.Advocate with Ms.Swathi
Sukumar and Ms.Surya
Rajappan, Advocates
CORAM:
HON'BLE MS. JUSTICE MUKTA GUPTA
IA No.11405/2016 (u/O VII R 11 read with Order I Rule 9 CPC by the
defendant)
1. By this application the defendant seeks rejection of the plaint on the
ground of non-joinder of necessary parties and non-disclosure of vital facts.
Learned counsel for the defendant submits that vide order dated 20 th July,
2016 when summons were being issued in the suit, the plaintiff had given up
the prayer in clause 44(A)(b) which is of passing off while confining the
reliefs in terms of clauses 44(A)(a), (B), (C) and (D).
2. Learned counsel for the defendant contends that admittedly as per the
plaint, plaintiff is not the owner of the trade mark 'Max' which was owned
initially by Max Financial Services limited (in short MFSL) and later
CS(COMM) 866/2016 Page 1 of 18
transferred to Max India. The plaintiff is the registered owner of six label
marks and thus cannot claim ownership or proprietorship of the word mark
'Max'. Further, in the plaint, it is not even pleaded that the word 'Max' is
essential feature of the plaintiff's registered label mark. Since the necessary
party in terms of Section 17 of the Trade Marks Act (in short 'TM Act') has
not been impleaded, the plaint is liable to be rejected.
3. Rebutting the contention of learned counsel for the plaintiff in respect
of the fact that from the plaint no case for no cause of action is made out and
no bar of law has been shown in entertaining the plaint, learned counsel for
the defendant relies upon the proviso to Order 1 Rule 9 CPC which provides
that the earlier portion of the Rule shall not apply to non-joinder of a
necessary party. Learned counsel for the defendant submits that the suit is
not only barred in terms of Section 17 of the TM Act but also under Sections
52 and 53 of the TM Act and thus liable to be rejected by way of demurer
and not dismissed which can be after the parties are heard.
4. Distinguishing the decision of the Supreme Court in the case reported
as 2006 (33) PTC 281 SC Ramdev Food Products Pvt. Ltd. Vs. Arvindbhai
Rambhai patel & Ors. learned counsel for the defendant submits that the
said decision was rendered by Supreme Court before Section 17 in the
present form was incorporated which amendment has been noted by the
Division Bench of this Court in 233 (2016) DLT 25 Vardhman Buildtech
Pvt. Ltd. & Ors. Vs. Vardhman Properties Ltd. Reliance is also placed on
the decision reported as 236(2017) DLT 333 P.K.Sen Vs. Exxon Mobile
Corporation & Anr.
5. The submission of learned counsel for the plaintiff is that at this stage,
the Court will only look into the averments in the plaint by way of demurer
CS(COMM) 866/2016 Page 2 of 18
and the suit cannot be dismissed for non-joinder of parties there being
distinction between the dismissal of the suit and rejection of the plaint; the
averments in the plaint bring out cause of action and do not qualify in the
four categories laid down under Order VII Rule 11 CPC warranting rejection
of plaint. Reliance is placed on the decisions reported as JT 2007 (3) SC 69
Prem Lata Nahata & Anr. Vs. Chandi Prasad Sikaria and
MANU/DE/1057/2001 Gajinder Pal Singh Vs. Mehtab Singh & Ors.
Learned counsel for the plaintiff further contends that though plaintiff is the
registered owner of six label marks however the word 'Max' is an essential
feature of the six registration certificates in favour of the plaintiff and hence
the defendant is infringing plaintiff's trade mark by using the word
MAXCURE HOSPITAL, MAXKURE/MAXCURE MEDCITI. Reliance is
also placed on the decisions reported in Ramdev (supra); 2012(50) PTC 433
(Del.) United Biotech Pvt. Ltd. Vs. Orchid Chemicals & Pharmaceuticals
Ltd.; 233 (2016) DLT 25 Vardhman Buildtech Pvt. Ltd. & Ors. Vs.
Vardhman Properties Ltd.; 236(2017) DLT 333 P.K.Sen Vs. Exxon Mobile
Corporation & Anr.; 199 (2013)DLT 242 Keshav Kumar Aggarwal Vs.
M/s.NIIT Ltd. and 214(2014) DLT 123 General Mills Marketing Inc. & Anr.
Vs. South India Beverages Pvt. Ltd. to contend that since the essential
feature of the plaintiff's mark has been infringed the present suit cannot be
rejected for want of cause of action or due to a bar in the institution of the
suit as per the law laid down.
6. Briefly, the facts pleaded in the plaint are that plaintiff Max
Healthcare Institute Limited (in short Max Healthcare) is a joint venture
company between Max India Limited and Life Healthcare Corporation
incorporated under the Companies Act and pioneer in healthcare services
CS(COMM) 866/2016 Page 3 of 18
having its registered office at Okhla, New Delhi. The healthcare business of
the plaintiff was transferred to Max India by Max Financial Services
Limited (in short MFSL) in pursuance of a Scheme of Demerger. The trade
mark 'Max' is owned and used by Max Financial Services Limited, MFSL
Group Companies, Max India and Max India Group Companies. It is
claimed that Max healthcare started its operation in India in the year 2000
and opened various Max Super Speciality and Multi Speciality hospitals in
the country.
7. In order to maintain the distinctiveness the plaintiff got registered six
label marks which are as under:
Trade Mark Registration Registration Class Goods/ services
Number Date
1248862 November 42 Hospital and healthcare
11, 2003
1369064 July 5, 2005 42 Clinic, dentistry,
medical research,
healthcare,
home(nursing),
hospitals, medical
assistance, medical
clinic, nursing homes,
physic-therapy,
consulting services
relating to chemical and
pharmaceutical
research,
biotechnological
services, medical and
hygienic services
falling in class 42.
CS(COMM) 866/2016 Page 4 of 18
Trade Mark Registration Registration Class Goods/ services
Number Date
1369062 July 5, 2005 42 clinic, dentistry,
medical research,
healthcare,
home(nursing),
hospitals, medical
assistance, medical
clinic, nursing homes,
physio-therapy,
consulting services
relating to chemical and
pharmaceutical
research,
biotechnological
services, medical and
hygienic services
falling in class 42.
1369065 July 5, 2005 42 clinic, dentistry,
medical research,
healthcare,
home(nursing),
hospitals, medical
assistance, medical
clinic, nursing homes,
physio-therapy,
consulting services
relating to chemical and
pharmaceutical
research,
biotechnological
services, medical and
hygienic services
falling in class 42.
1369066 July 5, 2005 42 clinic, dentistry,
medical research,
healthcare,
home(nursing),
CS(COMM) 866/2016 Page 5 of 18
Trade Mark Registration Registration Class Goods/ services
Number Date
hospitals, medical
assistance, medical
clinic, nursing homes,
physio-therapy,
consulting services
relating to chemical and
pharmaceutical
research,
biotechnological
services, medical and
hygienic services
falling in class 42.
1253026 March 12, 42 clinic, dentistry,
2003 medical research,
healthcare,
home(nursing),
hospitals, medical
assistance, medical
clinic, nursing homes,
physio-therapy,
consulting services
relating to chemical and
pharmaceutical
research,
biotechnological
services, medical and
hygienic services
falling in class 42.
8. It is claimed that the annual turnover of plaintiff and its
subsidiaries/affiliates is huge and Max Healthcare is expending enormously,
maintaining high standards and quality and developing its business and
services under the trade mark/trade name MAX/MAX HOSPITAL/MAX
CS(COMM) 866/2016 Page 6 of 18
HEALTHCARE. The plaintiff recently came to know that the defendant has
been using the trade mark MAXCURE HOSPITAL/MAXKURE which is
deceptively very similar to the plaintiff's trade mark. Plaintiff sent a notice
to the defendant through its counsel on March 04, 2016 and on April 08,
2016 the defendant responded to the plaintiff's notice refusing to comply
with their demands. Hence the suit.
9. In the light of these averments the plaintiff sought the relief of
permanent injunction from infringement and passing off of the defendant's
goods and services as that of the plaintiff. However, as noted above, sub-
prayer (b) of prayer Clause 44 A being given up the present suit only alleges
infringement of the plaintiff's well known trade mark.
10. Indubitably, while dealing with the application under Order VII Rule
11 CPC the Court will look into the averments made in the plaint and
documents filed by the plaintiff and see whether ex facie the plaint discloses
the cause of action. There can be no two opinions on this count and this
issue need not detain this Court any further. The contention of learned
counsel for the plaintiff is that the fact that there is misjoinder of parties
cannot entail rejection of the plaint and at best can be a ground for dismissal
of the suit and the issue of joinder or misjoinder of necessary parties can be
decided only after considering the relevant merits of the case of the plaintiff
and the defendant which may, in a given case, result in dismissal of the suit
at the hearing of the preliminary issues itself.
11. In Prem Lata Nahata (supra) the Supreme Court made a distinction
between the dismissal of the suit and rejection of the plaint and held that
where a plaint suffers from defect of misjoinder of parties or misjoinder of
causes of action either in terms of Order I Rule 1 and Order 1 Rule 3 CPC or
CS(COMM) 866/2016 Page 7 of 18
Order II Rule 3 CPC the Court itself indicates that the perceived defects do
not make the suit one barred by law or liable to rejection as is clear from
Rules 3A, 4 and 5 of Order 1 of the Code. Further, Rule 9 of Order I CPC
provides that no suit shall be defeated by reason of non-joinder or
misjoinder of parties and the Court may in either case deal with the matter in
controversy so far as it regards the rights and interests of the parties actually
before it. Noting the distinction between the word "barred by any law" used
under Order VII Rule 11(d) CPC the Supreme Court noted that bar is that
which obstructs entry or egress; to exclude from consideration. On
considering the provision of misjoinder of parties or of causes of action the
Supreme Court held that such a defect by no stretch of imagination can be
held to be barred by any law within the meaning of Order VII Rule 11 (d) of
the CPC. Sub-section (1) of Section 80 provides that "no suit shall be
instituted". This is therefore a bar to the institution of the suit and that is
why courts have taken the view that in a case where notice under Section 80
of the Code is mandatory, if the averments in the plaint indicate the absence
of a notice, the plaint is liable to be rejected.
12. The Supreme Court in Prem Lata Nahata (supra) was not dealing
with the case of non-joinder of a necessary party but with the defect of
misjoinder of parties or misjoinder of causes of action. The issue of non-
joinder of necessary parties was dealt by this Court in Gajinder Pal Singh
(supra), and on the peculiar facts and circumstances of the case wherein the
whereabouts of one of the legal heirs were not known for the last seven
years and thus he was presumed to be dead, this Court held that non-joinder
of a necessary party in such facts is not covered by any of the clauses of
Order VII Rule 11 CPC.
CS(COMM) 866/2016 Page 8 of 18
13. At this stage, it would be relevant to note the proviso to Order I Rule
9 CPC which reads as under:-
9. Mis-joinder and non-joinder.- No suit shall be defeated
by reason of the mis-joinder or non-joinder of parties, and
the court may in every suit deal with the matter in
controversy so far as regards the rights and interests of the
parties actually before it:
Provided that nothing in this rule shall apply to non-
joinder of a necessary party.
14. Thus, though a suit cannot be defeated/rejected for misjoinder or non-
joinder of parties, however, in case of non-joinder of a necessary party the
suit may not only be liable to be dismissed on a preliminary issue being
framed in this regard but also liable to be rejected by way of demurer on the
basis of averments in the plaint on an application under Order VII Rule 11
CPC or otherwise.
15. The present suit seeks a relief under Trade Marks Act, 1999 (in short
the TM Act) alleging infringement of its registered trade mark, the relief of
passing off having been given up. Sections 52 and 53 of the TM Act read as
under:-
52. Right of registered user to take proceedings against
infringement.-- (1) Subject to any agreement subsisting
between the parties, a registered user may institute
proceedings for infringement in his own name as if he were
the registered proprietor, making the registered proprietor
a defendant and the rights and obligations of such
registered user in such case being concurrent with those of
the registered proprietor.
(2) Notwithstanding anything contained in any other law,
a registered proprietor so added as defendant shall not be
CS(COMM) 866/2016 Page 9 of 18
liable for any costs unless he enters an appearance and
takes part in the proceedings.
53. No right of permitted user to take proceeding against
infringement.-- A person referred to in sub-clause (ii) of
clause (r) of sub-section (1) of section 2 shall have no right
to institute any proceeding for any infringement.
16. A bare reading of Sections 52 and 53 of the TM Act shows that only a
registered proprietor or a registered user of the trade mark is competent to
institute the proceedings for infringement in his own name. Thus, the very
maintainability of a suit for infringement is by a registered
proprietor/registered user. As per the plaint, admittedly, plaintiff is not the
registered proprietor/registered user of the trade mark 'Max'. It is the
registered owner/proprietor of the composite label mark and word 'Max' is a
part of the mark. Dealing with the issue whether a non-registered proprietor
of the trade mark can institute a suit alleging infringement and
distinguishing the decision of the Supreme Court in Ramdev (supra) this
Court in P.K.Sen (supra) held as under:-
16. Sections 52 and 53 are extremely important for the
purposes of this case. Section 52(1)provides that subject to
any agreement subsisting between the parties, a registered
user may institute proceedings for infringement in his own
name as if he were the registered proprietor. Of course, in
such eventuality, the registered proprietor has to be made a
defendant. Furthermore, in such cases, the rights and
obligations of such a registered user would be concurrent
with those of the registered proprietor. Since the plaintiff No.2
/respondent No.2 is admittedly not a registered user; Section
52(1) does not come into play insofar as it is concerned. But, what is important is that it has to be kept in mind that a registered user has been given the right to institute the CS(COMM) 866/2016 Page 10 of 18 proceedings for infringement in his own name as if he were the registered proprietor. Section 52(2) also deals with a case where a registered user has instituted a proceeding in his own name and does not arise for consideration in the present case. Section 53, in clear departure from Section 52, stipulates that a person referred to in Section 2(1)(r)(ii) shall have no right to institute any proceeding for any infringement. The person referred to in Section 2(1)(r)(ii) is a person other than the registered proprietor and registered user and would obviously include a 'permitted user'. In other words, the only persons who can bring a suit for infringement of a trade mark would be the registered proprietor himself or the registered user and certainly not a permitted user. Therefore, in our view, the submission made by the learned counsel for the appellant that the suit could not have been instituted by the respondent No.2/plaintiff No.2 is correct.
17. Section 134 of the said Act has already been extracted above. It may be seen that Section 134(1) refers to three kinds of suits:-
a) for the infringement of a registered trade mark;
b) relating to any right in a registered trade mark;
c) for passing off arising out of use by the defendant of any trade mark which is identical with or deceptively similar to the plaintiff's trade mark, whether registered or unregistered.
Section 134(2), however, relates only to the suits specified in clauses (a) and (b) above of sub-section(1). In other words, Section 134(2) of the said Act is relatable only to suits for infringement of a registered trade mark or for suits relating to any rights in a registered trade mark. It does not relate to an action of passing off. It may be remembered that the present suit is one of an action based on an alleged infringement of a registered trade mark. The expression used in Section 134(2), which is of material importance, is 'person instituting the suit'. From our discussion above on Section 53 of the said Act, it is evident that a permitted user cannot CS(COMM) 866/2016 Page 11 of 18 institute a suit for infringement of a registered trade mark. Therefore, the plaintiff No.2/respondent No.2 by itself could not have filed the present suit.
18. We now come to the next expression which is of importance where there are multiple plaintiffs. The expression is ― 'where there are more than one such persons'. The expression 'such persons' would obviously refer to persons instituting the suit and would obviously mean the persons who are entitled to institute the suit. It would definitely, in our view, not extend to persons who are disentitled to institute a suit or who do not have a right to institute any proceeding for infringement. In other words, the plaintiff No.2/respondent No.2 cannot be covered by the expression 'person instituting the suit' or within the expression 'such persons where there are more than one plaintiff'.
19. At this juncture, we may also point out that the Explanation to Section 134(2) provides that for the purposes of sub-section (2), 'person' includes the registered proprietor and the registered user. According to the learned single Judge and the respondents, this is an inclusive definition and is not a restrictive one. It is also the case of the respondents that the word 'person' would also include a 'permitted user'. On the contrary, the contention of the appellants is that it is an exhaustive one and the reference to person could only be to a registered proprietor and a registered user. In our view, both submissions are not correct. It is true that the definition of a 'person', as given in the Explanation cannot be restricted to 'registered proprietor' and the 'registered user' and on the face of it, it is a definition of the inclusive kind and not of a restrictive or exhaustive nature. We say so because Section 134(2)deals not only with cases of infringement of a registered trade mark as indicated in clause (a) of sub-section (1) of Section 134, but also pertains to suits relating to any right in a registered trade mark which may, if permitted by other provisions of the said Act, be instituted by persons other than the registered proprietor and the registered user. But, it would certainly not include a permitted user suing for an CS(COMM) 866/2016 Page 12 of 18 infringement of a trade mark. This is so because there is an express prohibition under Section 53 of the said Act. The learned single Judge seems to have lost sight of this aspect of the matter. If, indeed, the word ―person would include a permitted user, then it would mean that while on the one hand Section 53 bars such a person from instituting any proceeding for infringement, Section 134(2) would yet regard him as a person instituting the suit. This interpretation would be contrary to the terms of the enactment. Consequently, while we are of the view that the word 'person' as appearing in Section 134(2) is not restricted to registered proprietor and registered user, it certainly does not include a permitted user in a suit for infringement of a registered trade mark.
17. It is thus apparent that the present suit seeking infringement of the word 'Max' is liable to be rejected for non-joinder of necessary parties under the proviso to Order I Rule 9 CPC read with Section 52, 53 and 134 of the TM Act, however as noted above plaintiff is the registered owner of six label marks namely Max Health Care Max Hospital Max Medcentre Dr. Max Clinic and Max Health Staff and the claim of the plaintiff in the plaint is that the word 'Max' is an essential feature of the plaintiff's six label marks and thus by using the word 'Max' the defendant has infringed the essential feature of its label mark. Though learned counsel for the defendant contends that in the plaint it is not stated that the word 'Max' is an essential feature of its trademark but a perusal of para 6 of the plaint as noted below contains the averment that 'Max' is an essential part of the trade mark:
"6. The trade mark MAX has been owned and used by MFSL, MFSL group companies, Max India and Max India group companies in respect of goods and services falling in CS(COMM) 866/2016 Page 13 of 18 various categories, and has been in use not just as a trade mark, but also as a trade name for various business ventures. For all the activities of MFSL, MFSL group companies, Max India and Max India group companies, the mark MAX has been and continues to be the most integral part of the business name and also the trade mark. MFSL has been using the word MAX since before the Scheme. Each of the above named companies also uses the name MAX as an essential part of its trade mark and trade name various associated and connected concerns as under:
Max Life Insurance Co. Limited Max Bupa Health Insurance Co.Ltd.
Max Healthcare Institute Limited (Plaintiff) Max Speciality Films Limited"
18. Section 17 of the TM Act reads as under:-
17. Effect of registration of parts of a mark.-- (1) When a trade mark consists of several matters, its registration shall confer on the proprietor exclusive right to the use of the trade mark taken as a whole.
(2) Notwithstanding anything contained in sub-section (1), when a trade mark--
(a) contains any part--
(i) which is not the subject of a separate application by the proprietor for registration as a trade mark; or
(ii) which is not separately registered by the proprietor as a trade mark; or
(b) contains any matter which is common to the trade or is otherwise of a non-distinctive character, the registration thereof shall not confer any exclusive right in the matter forming only a part of the whole of the trade mark so registered.
CS(COMM) 866/2016 Page 14 of 1819. The Division Bench of this Court in the decision reported as 2013 (53) PTC 1 (Del)(DB) Himalaya Drug Company Vs. S.B.L. Limited dealing with the essential features of a trade mark observed:
"Essential Features
19. The courts have propounded the doctrine of prominent and essential feature of the trade mark for the purposes of adjudication of the disputes relating to infringement of trade mark. While deciding the question of infringement, the court has to see the prominent or the dominant feature of the trade mark. Even the learned single judge agrees to this proposition when the learned judge quotes McCarthy on Trade Marks that all composite marks are to be compared as whole. However, it is dependent on case to case to basis as a matter of jury question as to what can be the possible broad and essential feature of the trade mark in question.
20. It is settled law that where the defendant's mark contains the essential feature of the plaintiff's mark combined with other matter, the correct approach for the court is to identify an essential feature depending particularly "on the court's own judgment and burden of the evidence that is placed before the Court". In order to come to the conclusion whether one mark is deceptively similar to another, the broad and essential features of the two are to be considered. They should not be placed side by side to find out if there are differences, rather overall similarity has to be judged. While judging the question as to whether the defendant has infringed the trade mark or not, the court has to consider the overall impression of the mark in the minds of general public and not by merely comparing the dissimilarities in the two marks.
21. The ascertainment of an essential feature is not to be by ocular test alone but if a word forming part of the mark has come in trade to be used to identify the goods of the owner of the trade mark, it is an infringement of the mark itself to use that word as the mark or part of the mark of another trader for which confusion is likely to result. The likelihood of confusion CS(COMM) 866/2016 Page 15 of 18 or deception in such cases is not disproved by placing the two marks side by side and demonstrating how small is the chance of error in any customer who places his order for goods with both the marks clearly before him, for orders are not placed, or are often not placed, under such conditions. It is more useful to observe that in most persons the eye is not an accurate recorder of visual detail and that marks are remembered rather by general impressions or by some significant detail than by any photographic recollection of the whole". In the decision reported as (1951) 68 RPC 103 at page 105, De Cordova v. Vick Chemical Co., the plaintiffs were the proprietors of a label containing the words "Vick's VapoRub" as the essential feature, registered in Jamaica, and the defendants used a similar label with the words "Karsote Vapour Rub" as the essential feature, and it was shown that the expression "VapoRub" had become distinctive of the plaintiff's goods in Jamaica, an action for infringement was successful. (See De Cordova v. Vick Chemical Co. (supra), (1941) 58 RPC 147, Saville Perfumery Ld. v. June Perfect Ld., AIR 1972 SC 1359 at 1362, M/s. National Chemicals and Colour Co. and Others v. Reckitt and Colman of India Limited and AIR 1991 Bombay 76: 1991 (11) PTC 217 (Bom) (DB), M/s. National Chemicals and Colour Co. and others vs. Reckitt and Colman of India Limited and another)
22. Identification of essential features of the trade marks has been discussed in details in the case of Kaviraj Pandit Durga Dutt Sharma vs. Navaratna Pharmaceutical Laboratories (supra):-
In an action for infringement, the plaintiff must, no doubt, make out that the use of the defendant's mark is likely to deceive, but where the similarity between the plaintiff's and the defendant's mark is so close either visually, phonetically or otherwise and the court reaches the conclusion that there is an imitation, no further evidence is required to establish that the plaintiff's rights are violated. Expressed in another way, if the essential features of the trade mark of the plaintiff have been CS(COMM) 866/2016 Page 16 of 18 adopted by the defendant, the fact that the get-up, packing and other writing or marks on the goods or on the packets in which he offers his goods for sale show marked differences, or indicate clearly a trade origin different from that of the registered proprietor of the mark would be immaterial;......
When once the use by the defendant of the mark which is claimed to infringe the plaintiff's mark is shown to be "in the course of trade", the question whether there has been an infringement is to be decided by comparison of the two marks. Where the two marks are identical no further questions arise; for then the infringement is made out.
23. The Court in determining whether the Defendant's mark is deceptively similar to the mark of the Plaintiffs were enunciated in the judgment of Mr. Justice Parker in the decision reported as 1906(23) RPC 774, Pionotist Case:
You must take the two words. You must judge them, both by their look and by their sound. You must consider the goods to which they are to be applied. You must consider the nature and kind of customer who would be likely to buy those goods. In fact, you must consider all the surrounding circumstances; and you must further consider what is likely to happen if each of those trademarks is used in a normal way as a trade mark for the goods of the respective owners of the marks. If, considering all those circumstances, you come to the conclusion that there will be a confusion-that is to say, not necessarily that one man will be injured and the other will gain illicit benefit, but that there will be a confusion in the mind of the public which will lead to confusion in the goods-then you may refuse the registration, or rather you must refuse the registration in that case."CS(COMM) 866/2016 Page 17 of 18
20. Since in the plaint, plaintiff claims and even from the label marks as noted above it is evident that 'Max' is the essential feature of the label mark of the six trademarks, thus, the use of the word 'Max' by the defendant amounts to infringement. Consequently, the plaint cannot be rejected at this stage.
21. The application is dismissed.
(MUKTA GUPTA) JUDGE NOVEMBER 29, 2017 'rk' CS(COMM) 866/2016 Page 18 of 18