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8. Reply to the application has been filed by the defendant No.2 wherein it is stated that defendant No.2 is not infringing the plaintiff's trade mark for the reason that the defendant No.2's mark 'ZYVAC-TCV', when considered as a whole is entirely different from the plaintiff's mark and the essential and prominent feature of the defendant No.2's mark is 'ZYVAC'- which is a combination of the words 'Zydus' and 'Vaccine'. Further, the Trade Mark 'TCV' of the plaintiff is generic and descriptive of a category of vaccine called 'Typhoid Conjugate Vaccine' and cannot acquire any distinctiveness through use and is therefore not entitled to protection in law. That apart, the plaintiff cannot claim to be the first adopter of the mark TCV and has concealed the fact that prior to the alleged adoption of its mark in the year 2012, another entity had filed an application for the registration of the mark TCV on June 24, 2009 claiming use since May 6, 2009. The said application was in fact cited in the examination report of the plaintiff's application for the mark 'TCV'. Hence, the plaintiff is clearly not the creator nor prior user of the mark as alleged. It is stated that the trade mark 'TCV' per se is not used by the plaintiff and no evidence has been adduced to show use of the said mark. Even the abbreviation 'TCV' is not being used in a trade mark sense by defendant No.2 in the mark 'ZYVAC-TCV'. The defendant's mark 'ZYVAC-TCV' is a coined, original and arbitrary trade mark and third parties are also using the mark 'TCV' in a descriptive sense as the defendant No.2, and the same is permissible in law. It is stated that the defendant No.2 is not passing off its product as that of the plaintiff and the same is clear as (i) a comparison of the product packaging of the defendant No.2's product with that of the plaintiff shows that there is no similarity between the same; (2) no case of passing off is established by the plaintiff as no evidence is forthcoming to prove the goodwill of the marks of the plaintiff as the plaintiff has not even been using the mark 'TCV' per se. The reply seeks the dismissal of the application.

27. It was submitted by Mr. Sapra that by applying the abovementioned test, the marks 'ZYVAC-TCV' and 'TYPBAR- TCV' bear no resemblance or similarity and therefore eliminate any likelihood of confusion or deception. The essential feature of the defendant No.2's mark is 'ZYVAC' and not 'TCV', as it is evident from a mere glance at defendant No.2's product packaging. The mark 'ZYVAC' is a coined mark and is a unique combination of the words ZYDUS and VACCINE, and as such, has no meaning, thus qualifying as an arbitrary and fanciful mark. Without prejudice, while a mark is to be considered in its entirety, yet, it is permissible to accord more importance to a dominant element in composite marks. It is not a violation of the anti-dissection rule to view the dominant component parts in order to decipher the probable consumer reaction. (Ref:- South India Beverages Pvt. Ltd. v. General Mills Marketing Inc., (2015 (61) PTC231 (Del)). Any reference to the mark 'ZYVAC' relates solely to defendant No. 2, owing to the enormous reputation and goodwill associated with the mark 'ZYDUS'. Members of the trade and consumers at large associate the mark 'ZYVAC' exclusively with 'ZYDUS' and the Zydus Group in view of the reputation of the defendant No.2's group companies and the various medicines provided under marks containing 'ZY'. The very adoption of the arbitrary mark 'ZYVAC' shows the defendant No.2's bona fide intention, and clarifies that it only seeks to convey to consumers that the product in question is a 'TCV' vaccine manufactured by the Zydus Group.