M/S Mankind Pharma Ltd vs M/S Neospark Drugs & Chemicals ...

on 21 March, 2015

Delhi District Court

M/S Mankind Pharma Ltd vs M/S Neospark Drugs & Chemicals ... on 21 March, 2015
Author: Sh. Balwant Rai
IN THE COURT OF SH. BALWANT RAI BANSAL,
ADDITIONAL DISTRICT JUDGE−02 (SOUTH−EAST),
SAKET COURTS, NEW DELHI

TM No. 15/13

M/s Mankind Pharma Ltd.

..... Plaintif
Vs.

M/s Neospark Drugs & Chemicals Pvt. Ltd.

..... Defenda

O R D E R

1. Vide this order I shall dispose of an application u/o 39 rule 1 & 2 CPC moved by the plaintiff.

2. Brief facts necessary for disposal of the present application are that the plaintiff has filed the
present suit seeking permanent injunction for passing off, infringement of Trade mark, rendition of
accounts, delivery up etc against the defendant. The case of the plaintiff is that it is a company duly
incorporated under the provisions of the Companies Act, 1956 and is engaged in
manufacturing/marketing, trading and marketing of drugs of different description and of various
nature since its inception. The plaintiff's company was incorporated on 03.07.1991 as Mankind
Pharma Private Ltd. and was converted into a Public Limited Company by deleting TM No. 15/13
the word "Private" from its name vide special resolution dated 14.07.2005 as Mankind Pharma
Limited. In December 2007, under its umbrella group, the plaintiff has incorporated Lifestar
Pharma Private Limited which is primarily engaged in trading and marketing of drugs of different
descriptions and of various nature. It is stated that since the year 2011, the plaintiff's group has
successfully retained its number 1 rank in the Indian pharmaceutical industry and the plaintiff has
assiduously built an envious reputation over a period of time whereby the people at large have come
to associate certain intrinsic qualities with the products of the plaintiff. The plaintiff's group besides
manufacturing/marketing various pharmaceutical products with distinct trade mark, has been
manufacturing/marketing a product with trade mark "Maxical" since the year 1995 and is also its
registered proprietor vide trade mark registration number 1038545 dated 21.08.2001 in class 05.
The plaintiff is also the proprietor of the registered trade mark "Alpha Maxical" under number
1249002 dated 12.11.2003 in class 05. It is stated that the trade mark "Maxical" is neither a
descriptive nor an indicative word rather it is an arbitrary word, which has been coined and
conceptualized by the plaintiff's company and being the registered proprietor of the said trade mark,
the plaintiff has the statutory monopoly to use the trade mark to the exclusion of others.

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TM No. 15/13

3. It is further averred that the defendant is a company and has been dealing in pharmaceutical
products. The defendant besides manufacturing/marketing other veterinary products is
manufacturing/marketing a product with trade mark "Maxcal" being used as gel for animal feed
supplement and has been using the said trade mark since 2007. It is stated that having complete
knowledge about the plaintiff's registered trade mark "Maxical", the defendant in a clandestine
manner had applied for the registration of the mark "Maxcal" by deleting the alphabet "i" and
adding the word "Gel" in class 31 where as the same would fall under class 05 of the Nice
Classification. The plaintiff has taken due steps for cancellation of the registration of the trade mark
of the defendant by filing an application before Intellectual Property Appellate Board (IPAB). It is
stated that the mark "Maxical" was first adopted by the plaintiff in the year 1995 and since then the
plaintiff's group has been extensively using the said trade mark and has incurred substantial
expenses in popularizing the trade mark by advertisement and by virtue of its long use by the
plaintiff, the said trade mark has come to be identified with the plaintiff's group. The plaintiff in the
month of May 2011 came to know about the product of the defendant with the trade mark "Maxcal"
which the defendant has been using since 2007. The trade mark "Maxcal" of the defendant is
phonetically similar to the trade TM No. 15/13 mark "Maxical" of the plaintiff and by using the mark
"Maxcal" the defendant has intentionally and deliberately intended not only to reap commercial
benefit from the goodwill and reputation enjoyed by the mark of the plaintiff by passing off its
product as that of the plaintiff but has also intentionally designed to mislead the public at large by
inducing them to believe that the product having the mark "Maxcal" hails from the stable of the
plaintiff. It is stated that the plaintiff's group is the prior adopter, prior user and the registered
proprietor of the trade mark "Maxical" and the impugned trademark "Maxcal" of the defendant is
almost identical or deceptively similar with the trade mark of the plaintiff and hence its use by the
defendant amounts to infringement of the registered trade mark of the plaintiff. The defendant's
trade mark so closely resembles that of the plaintiff that there is every likelihood of people getting
confused and opting for the product having the impugned trade mark under the impression that
same belongs to the plaintiff's group. It is stated that goods of the defendant such as animal feed
supplement and goods of the plaintiff such as medicinal and pharmaceutical preparations for
human use are sold over or distributed through the same channels or counters and since the mark of
the defendant is deceptively similar to that of the plaintiff, there is a grave danger of the plaintiff's
mark diluted and there is also a fair possibility of injury being caused to the public at TM No. 15/13
large. Hence, the present suit.

4. The plaintiff has prayed for (i) decree of perpetual injunction restraining the defendant from
infringing/passing off goods, selling, marketing, advertising, distributing or dealing in any manner
with the goods under the trade mark "Maxcal" or any other trade mark which is identical or
deceptively similar to the registered trade mark "Maxical" of the plaintiff, (ii) decree of mandatory
injunction directing the defendant to disclose on oath all the goods sold bearing the said trade mark
"Maxcal" and for destruction or removal of such goods, rendition of accounts of profit illegally
earned by the defendant by selling the such goods, (iii) a decree for delivery up all such goods and
(iv) a decree of damages.

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5. Along with the suit, the plaintiff has also filed an application u/o 39 rule 1 & 2 CPC, which is
under disposal praying for the same relief during the pendency of the suit.

6. The defendant has filed WS and reply to the application contending that plaintiff has no locus
standi to file the present suit as the plaintiff is not the registered proprietor of the trade mark in
question "Maxical" in class 5. In fact, the registered proprietor of the trade mark "Maxical" is M/s
Mankind Pharma Pvt. Ltd., which is different from the plaintiff company. It is further contended
that the plaintiff has suppressed the material fact that plaintiff earlier had filed TM No. 15/13 a suit
bearing TM No. 131/11 along with an application u/o 39 rule 1 & 2 CPC which was dismissed on
13.03.2013 as the plaintiff had no valid/subsisting certificate of registration of trade mark and the
suit was withdrawn by the plaintiff with a liberty. The dismissal order dated 13.03.2013 has not been
challenged by the plaintiff and has attained the finality and therefore present suit is hit by principles
of res−judicata and is liable to be dismissed. Defendant has further contended that this court has no
territorial jurisdiction to try and entertain the present suit as no cause of action has arisen within
the jurisdiction of this court. It is denied that there is any similarity in the trade mark of the plaintiff
with that of the defendant. It is stated that the defendant's trade mark "Maxcal Gel", which is liquid
gel feed supplement used for cattle and other animals, is entirely different from the plaintiff's trade
mark "Maxical" which is a capsule/tablet for human medicine. Moreover, the plaintiff's medicinal
products for human consumption are sold out from the medical/chemist shops, whereas the
veterinary/animal products of the defendant are sold out from the veterinary/animal shops/ outlets
and hence same does not create any confusion to the literate and illiterate persons. It is further
stated that the defendant's trademark "MaxCal Gel" is registered under Class 31 of the Trademark
Rules, 2002, vide certificate No. 1082263 dated 21.02.2011, whereas the trade mark of the plaintiff
TM No. 15/13 "Maxical" is registered under Class 5 of Trademark Rules and as such both the trade
marks belong to two different classes and the products manufactured under both the trademarks are
of different class and use and therefore question of causing confusion and financial loss does not
arise as claimed by the plaintiff. The other contents are stated to be wrong and denied and the
defendant has prayed for dismissal of the suit and of the interim application.

7. I have heard the Ld. Counsel for the parties and perused the record carefully.

8. In order to succeed for the relief of grant of temporary injunction, the plaintiff is required to
establish three ingredients i.e. (i) the plaintiff has a prima facie case for infringement in its favour,
(ii) balance of convenience lies with the plaintiff and (iii) the plaintiff shall suffer irreparable loss
and injury which cannot be compensated in terms of money, if the injunction is not granted.

9. First of all, I shall deal with the legal objection raised by the defendant.

10. The contentions of the defendant that the trade mark in question "Maxical" is registered in
favour of M/s Mankind Pharma Private Limited which is a different company from the plaintiff and
as such plaintiff is not the registered proprietor of trade mark in question and has no locus standi to
file the present suit and further that this TM No. 15/13 court lacks territorial jurisdiction to try and
entertain the present suit, have already been considered and rejected while disposing of two
applications filed by the defendant U/o 7 Rule 11 CPC. This court while deciding both the

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applications of the defendant held that this court has territorial jurisdiction to try and entertain the
present suit and further that trade mark "Maxical" was registered in favour of 'Mankind Pharma
Private Limited' which subsequently changed its name to Mankind Pharma Limited which is the
plaintiff in the present case and the registration of the trade mark "Maxical" also got renewed upto
2021 in the name of plaintiff i.e. Mankind Pharma Ltd. and therefore plaintiff is the registered
owner of the trade mark in question.

11. So far the contention of the defendant that earlier suit filed by the plaintiff seeking same relief
was dismissed as withdrawn and the interlocutory application moved by the plaintiff in the said suit
u/o 39 rule 1 & 2 CPC was dismissed which has attained the finality and hence the present suit is hit
by principles of res judicata is concerned. Perusal of the record shows that the earlier suit was
withdrawn by the plaintiff with a liberty to file fresh one on same cause of action, which was granted
by the court. The plaintiff in the plaint itself has averred that in October 2011, it instituted a suit
against the defendant seeking same relief as sought in the present suit but due TM No. 15/13 to
some deficiencies in the plaint, the plaintiff's counsel requested the court to withdraw the suit with a
liberty to file afresh which was not opposed by the defendant and hence the suit was dismissed as
withdrawn with a liberty to file afresh. The plaintiff has also placed on record the copy of order
dated 29.05.2013 to show that earlier suit was dismissed as withdrawn with a liberty to file afresh.
Therefore, dismissal of the application u/o 39 rule 1 & 2 CPC in earlier suit would not operate as res
judicata in filing the present suit and it cannot be said that present suit is hit by principles of res
judicata because present suit has been filed by the plaintiff after liberty having been granted by the
court to file the fresh one.

12. Now, it is to be seen as to whether the plaintiff is entitled to interim injunction as prayed for.

13. Perusal of the record reveals that plaintiff M/s Mankind Pharma Limited was earlier known with
the name 'Mankind Pharma Private Limited' and it applied for registration of trade mark "Maxical"
with the Trade Mark Registry vide application No. 1038545. The trade mark "Maxical" was
registered in favour of Mankind Pharma Private Limited on 07.12.2004 with the registered Trade
Mark No. 1038545 which was valid upto 21.08.2011. The plaintiff subsequently changed its name
from "Mankind Pharma Private Limited' to 'Mankind Pharma Limited' which has been TM No.
15/13 approved by the Registrar of Companies and in this regard fresh Certificate of Incorporation is
placed on record by the plaintiff. The plaintiff has also placed on record the certificate issued by the
Trade Marks Registry showing that registration of trade mark "Maxical" bearing Trade Mark No.
1038545 in the name of Mankind Pharma Pvt Ltd. has been renewed for a period of 10 years from
21.08.2011 to 21.08.2021. The plaintiff has claimed that it has been manufacturing/marketing a
medicinal product for human consumption under the trade mark "Maxical" since 1995 and has a
good turnover of sales of its pharmaceutical products. The plaintiff has also placed on record bunch
of invoices to show the volume of sale of its medicinal product with the trade mark "Maxical" and
other brands of plaintiff's group since 2001. It is further claimed that that plaintiff's group being in
the business of pharmaceutical products under its registered trademark "Maxical" and other distinct
trade marks for a considerable period of time, is now largely identified by its trademarks "Maxical"
and "Alpha Maxical" and has acquired a goodwill and reputation in the Indian pharmaceutical
industry and the people in pharmacy trade and industry identifies these trademarks with the

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plaintiff, which fact has also not disputed by the defendant in the written statement. The plaintiff
further claims that in the month of May, 2011 it came to know about the product of the defendant
with the trade mark TM No. 15/13 "Maxcal" which is deceptively similar to the registered trade mark
of the plaintiff "Maxical". The plaintiff further claims that it is the prior user of the trademark
'Maxical' and therefore the adoption of the trade mark 'Maxcal' by the defendant is to pass off its
goods under the trademark "Maxical" of the plaintiff and it also infringes the registered trademark
of the plaintiff "Maxical" being deceptively similar and capable of causing confusion among the
public.

14. Admittedly, the defendant has been manufacturing/marketing the pharmaceutical product for
veterinary use since 2007 under its registered trade mark "MaxCal Gel". The defendant in the
written statement has mainly contended that medicine manufactured by the plaintiff under its trade
mark "Maxical" is for human use and the medicine manufactured by the defendant under its trade
mark "MaxCal Gel" is for veterinary/animal use and further the products manufactured under both
the trade marks belong to two different classes and distributing channel of both the products are
also different and therefore question of any similarly or causing confusion does not arise.

15. In view of above stand taken by the defendant and admitted position that plaintiff deals in the
medicinal products for human consumption and the defendant deals in medicinal products for
veterinary use, it has to be seen as to whether both the marks are TM No. 15/13 identical and if there
is any likelihood of confusion in the minds of customers who shall be using these products due to
their deceptive similarity and further whether the channels of sale of both the products are one or
different and the likelihood of confusion to the prospective customers and the consequences thereof.

16. It is evident that the trade mark of the plaintiff "Maxical"

and the impugned trade mark "MaxCal" of the defendant are phonetically similar.
For the normal pronouncement there will be confusion as both the words are almost
identical. Even the defendant has not disputed in the written statement regarding the
phonetic similarity between the two marks. To make a difference one has to spell the
word very carefully and in a different manner. When both the marks are looked side
by side, except the letter 'i', which is omitted in the trade mark of the defendant, rest
of the letters in both the marks are the same and there is absolutely no difference.
When, at the first glance impugned trade mark "Maxcal" of the defendant is seen, the
visual impact is that it closely resembles to the plaintiff's registered trade mark
"Maxical". As such, it is apparent that both the trade marks are not only phonetically
similar but also visually similar and it is likely to cause confusion in the minds of the
customers.

17. Now, the question arises as to whether a different use, class and different channel of sale can
solve the problem of confusion. TM No. 15/13

18. Admittedly, the product of the plaintiff under its trade mark "Maxical" and the product of the
defendant under impugned trade mark "MaxCal" are medicinal products. The plaintiff has claimed

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that distributing channel for both the products is one and same and therefore, possibility of
confusion cannot be ruled out. The plaintiff has also placed on record the list of chemist shops at
Western UP where both the products i.e. veterinary and human medicinal products are being sold at
same counter. The Ld. Counsel for defendant contended that list filed by the plaintiff is only with
respect to Western UP and there is no evidence that both the products i.e. veterinary and human
medicinal products are being sold at same counter throughout the India. I do not find any merit in
this contention of the Ld. Counsel for defendant. I find force in the argument of Ld. Counsel for
plaintiff that plaintiff is not supposed to visit each and every place to find out the number of chemist
who are selling both the products. It is a common knowledge that channel of sale of both the
products are same and the human medicinal products and veterinary products are available at the
same counter. On the contrary, it has not been shown on record by the defendant that there exist
exclusive chemist shops dealing in veterinary products only.

19. In Ranbaxy Laboratories Ltd. Vs. Vets Farma (Private) Ltd. & Ors. TA No. 115/2003/TM/Delhi
CM (M) No. 325/95, the TM No. 15/13 question before the Hon'ble Intellectual Property Appellate
Board, Chennai was whether a different use could solve the problem of confusion. It was observed
that, "One has to take note of the fact that both the marks are under Class 5. Appellant's mark may
be for human consumption and the respondent's mark may be for veterinary consumption. But
however the distributing channel for the consumer is one and the same. When the storing place and
the distributing channel being one and the same, we cannot with all impunity rule out the possibly
of confusion. We also cannot forget the fact that at the distribution centre or the distribution
window only qualified hands are dealing in the goods. When there is possibility of mixing up of the
medicines, we have to be doubly careful because human value of life is more." The Hon'ble Supreme
Court held in Cadila Health Care Ltd. Vs. Cadila Pharmaceuticals Ltd. , 2001 PTC 541 (SC) at page
560−561 that, "What is likely to cause confusion would vary from case to case. However, the
appellants are right in contending that where medicinal products are involved, the test to be applied
for adjudging the violation of trade mark law may not be on a par with cases involving non−
medicinal products. A stricter approach should be adopted while applying the test to judge the
possibility of confusion of one medicinal product one another by the consumer. While confusion TM
No. 15/13 in the case of non−medicinal products may only cause economic loss to the plaintiff,
confusion between the two medicinal products may have disastrous effects on health and in some
cases life itself. Stringent measures should be adopted especially where medicines are the medicines
of last resort as any contusion in such medicines may be fatal or could have disastrous effects. The
confusion as to the identity of the product itself could have dire effects on the public health."

20. The above principles laid down by the Hon'ble Apex Court clearly indicate the care to be taken in
considering the confusion between the two medicinal products. In the present case, since the
product of the plaintiff and the impugned product of the defendant are medicinal product, though
one is used for human consumption and the other is used for veterinary use, therefore more caution
and care is required while dealing with these products when the distributing channel is the same. In
case the products get mixed up, it may have disastrous effect on the human health. Therefore, on the
above principles, if question of confusion is considered in the present case, definitely the plea of
different user may not have any significance when the distributing channel is the same. Since both
the trade marks are visually and phonetically also idential, there is every possibility of confusion in

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the minds of the customers and unwary TM No. 15/13 customer may buy the product of the
defendant taking it to be product of the plaintiff.

21. In Glaxo Group Ltd. & Anr. Vs. Neon Laboratories Ltd. , 2004 (29) PTC 88 (Bom), the
contention that plaintiffs products sold under the trade mark TROX is a veterinary drug whereas the
defendants product sold under the trade marks TREX is an anti cancer drug for human
consumption in an indictable form and hence there can be no confusion as far as the two products
are concerned was negated by the Hon'ble High Court of Bombay.

22. The Hon'ble High Court of Delhi held in Daffodils Perfumes & Chemicals Industry Vs. Daffodil
Chemical (P) Ltd. 1996 (16) PTC 153 (Del) that, "The underlying principle of the law of passing off is
to protect reputation and goodwill of the plaintiff in his business which also amounts to property of
the plaintiff. Honest business policy is no one shall be permitted to or attempt at taking advantage of
another's goodwill and reputation. Where the plaintiff and defendant are trading in different articles
or goods and still the plaintiff complains of passing off by the defendant, what is the test to be
applied? It has to be seen whether the field of activity is common. Judging by the over−riding
consideration of justice, equity and good conscience one has to seek an answer to the question
whether the two TM No. 15/13 sets of goods are so commonly dealt with by the same traders and so
commonly consumed by the same class of customers that a customer of the plaintiff's articles while
posed with the defendant's articles would be led away to believe that the defendant's goods were of
the plaintiff. More cognate or allied the goods, higher the possibility of deception or confusion and
likelihood of passing off."

23. Though, the Ld. Counsel for defendant has argued that trade mark of the defendant "MaxCal" is
registered under Class 31, while the trade mark of the plaintiff "Maxical" is registered under Class 5
and this is also a distinctive factor and there is no likelihood of confusion. However, this contention
of the Ld. Counsel is not tenable and even if the products of the plaintiff and defendant fall under
different classes, it will not help the case of the defendant since same trade mark pricol of the
plaintiff is being used by the defendant and it amounts to infringement and passing off the goods of
the defendant as that of the plaintiff. I am fortified in this regard the judgment of Hon'ble High
Court of Madras in Premier Instruments & Controls Ltd. Vs. Perfect Automotive Components CS
No. 534 and 535 of 1993 decided on 03.02.2000.

24. Ld. Counsel for defendant has also argued that the plaintiff is not manufacturer of the medicinal
product under the trade TM No. 15/13 mark "Maxical" and it is Lifestar Pharma Private Ltd. who is
manufacturing/marketing the said medicinal product under the trade mark "Maxical". To this, Ld.
Counsel for plaintiff submitted that Lifestar Pharma Private Limited is the subsidiary company of
the plaintiff's group which has been authorized to manufacture and market the product on behalf of
the plaintiff and there is no bar under the Trade Marks Act that the firm who is not manufacturing
and trading cannot be registered owner of the trade mark. It is evident from the record that plaintiff
has stated in the plaint itself that it has incorporated in its umbrella group Lifestar Pharma Private
Limited who is engaged in trading and marketing of drugs. Therefore, as the plaintiff is the owner
and registered proprietor of the trade mark "Maxical" and even the Lifestar Pharma Pvt. Ltd is
manufacturing the product, it would not affect the right of the plaintiff to protect its trade mark

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from being infringed or passed off by the others.

25. The defendant has also contended in reply to the interim application that there is no question of
any confusion among the buyers because on the impugned product of the defendant logo of an
animal is affixed on the tube and on the carton box which is sufficient to distinguish with the
product of the plaintiff.

26. In Durga Dutt Sharma Vs. Navaratna Pharmaceuticals Laboratories AIR 1965 SC 980 it has been
held that " In an action TM No. 15/13 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 adopted by the defendant, the fact that the get up, packing and other wiring
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 original different from that of the registered property of the
mark would be immaterial, whereas in the case of passing off, the defendant may escape liability if
he can show that the added matter is sufficient to distinguish his goods from those of the plaintiff."

27. In the present case also, it is apparent that the trade mark of the plaintiff "Maxical" and the
impugned trade mark of the defendant is phonetically and visually similar and therefore any
difference in packing, get up or colour scheme would not make any difference and would not help
the case of the defendant because in the present case also the plaintiff seeks the protection of its
registered trade mark from being infringed by the impugned trade mark of the defendant.

TM No. 15/13

28. In view of aforesaid discussions, in my considered opinion, the plaintiff has made out a prima
case in its favour that it is the registered proprietor of trade mark "Maxical" and is the prior user of
the said trade mark since 1995 and the impugned trade mark of the defendant "MaxCal" is
deceptively similar to the trade mark of the plaintiff. It is also apparent that both the trade marks
are phonetically and visually identical and there is only omission of one alphabet 'i' from the
impugned trade mark of the defendant. Prima facie, it appears that the impugned trade mark has
been deliberately designed in such a manner to pass off its goods under the trade mark "Maxical" of
the plaintiff and therefore it is likely to cause confusion in the minds of the customers and they may
take the product of the defendant taking it to be of plaintiff's product and both the products relates
to pharmaceutical and if the defendant's product are mistakenly taken by a customer believing it to
be of plaintiff's product, it may have catastrophic effect on the human health. Balance of
convenience also lies in favour of the plaintiff and plaintiff shall suffer irreparable loss and injury if
the injunction is not granted.

29. Accordingly, the defendant, their agents/ dealers/ associates/ distributors/ stockists/ assigns/
employees/ servants are restrained from infringing or passing off their goods under the trade mark
"Maxcal" or any other mark which is identical or deceptively TM No. 15/13 similar to that of the

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plaintiff's registered trade mark "Maxical" in relation to medicinal pharmaceutical preparation and
animal supplement.

Nothing stated herein above shall tantamount to my expression on the merits of the case.

Announced in the open Court (Balwant Rai Bansal) on 21st March, 2015 Addl. District Judge −02
(South−East) Saket Courts, New Delhi TM No. 15/13 TM No. 15/13 M/s Mankind Pharma Ltd. Vs.
M/s Neospark Drugs & Chemicals 21.03.2015 Present: Sh. Hemant Daswani, Counsel for the
plaintiff.

None for the defendant.

Vide my separate order of even date, the application moved by the plaintiff u/o 39 rule 1 & 2 CPC is
allowed.

Case is now fixed for replication, if any, admission/denial of documents and framing of issues for
30.04.2015.

(Balwant Rai Bansal) ADJ−02/SE/Saket/New Delhi 21.03.2015 TM No. 15/13

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