Apollo Hospitals Enterprise Ltd. vs Sri Sai Apollo Pharmacy

Sl.

No.","Trade Mark

Number",Date,Class,Trade Mark

1,1576795,06.07.2007,42,Apollo Pharmacy

2,1576790,06.07.2007,5,Apollo Pharmacy

3,1718084,05.08.2008,35,Apollo Pharmacy

4,1718078,05.08.2008,10,Apollo Pharmacy

5,1718086,05.08.2008,41,Apollo Pharmacy

6,1785330,16.02.2009,3,Apollo Pharmacy

7,1785333,16.02.2009,24,Apollo Pharmacy

8,1836922,06.07.2009,5,Apollo Pharmacy

9,1576796,06.07.2007,5,APOLLOHOSPITALS

10,1576797,06.07.2007,42,APOLLOHOSPITALS

11,1804010,08.04.2009,35,APOLLOHOSPITALS

12,1576799,06.07.2007,42,APOLLO

The plaintiff has averred that they have spent considerable amount of money and have put in enormous effort and time for developing the,,,,

unique design for their products under the said trademarks. It is further submitted that the said trademarks have become very popular among,,,,

public. The plaintiff has been maintaining a very good standard for their products and services is the further submission on behalf of plaintiff.,,,,

It is the specific case of plaintiff that they have registration for the word mark and therefore, use of similar and highly deceptive offending mark",,,,

for the same product is a clear case of infringement. It is the further case of the plaintiff, as articulated by learned counsel for plaintiff in the hearing",,,,

that the service rendered by the defendant is same and channel of trade is also same. Further more, the purchasers belong to all strata of society",,,,

and therefore, deception is inevitable is his say. This according to learned counsel for plaintiff is a indisputable case of passing off and it is submitted",,,,

that defendant is clearly riding on the popularity of the said trademarks of plaintiff.,,,,

I now turn to exhibits that have been marked in the instant case.,,,,

Before looking at the exhibits, it is to be noted that one witness, i.e., P.W.1 was examined on behalf of plaintiff company. That one witness on",,,,

behalf of plaintiff company is one Mr.S.M.Mohan Kumar, who is Manager Legal of the plaintiff company. Nineteen exhibits have been marked on",,,,

behalf of the plaintiff through P.W.1.,,,,

Ex.P.1 is the extract of minutes of the resolution passed in the Board of Directors meeting of the company held on 24.01.2007, authorizing",,,,

Mr.S.M.Mohan Kumar, Asst. Manager-Legal to represent the company before the Court and to give oral/documentary evidence on behalf of the",,,,

company. Ex.P.2 to Ex.P.13 are registration certificates of said trademarks, details of which have been alluded to supra.",,,,

Plaintiff company has marked a photograph of defendant''s offending mark as Ex.P.14. The said photograph is as follows :,,,,

Thereafter, the plaintiff company has marked a photograph of its sign board as Ex.P.15 which is as follows :",,,,

With regard to aforesaid two marks, I am not embarking upon comparison qua essential features, over all similarity, etc., because this is a case",,,,

of infringement of word mark per se and word ''Apollo'' being dominant / prominent part of other marks, wherein depiction of mark takes a back",,,,

seat. In any event, as far as the aforesaid rival marks are concerned, there is hardly any difference. Both words are written in the same manner.",,,,

However, to be noted, while the said trademarks are ''Apollo'', ''Apollo Pharmacy'' and ''Apollo Hospitals'', the alleged offending mark is ''Sri Sai",,,,

Apollo Pharmacy'', wherein the words ''Sri Sai'' are written in relatively very small font/letters.",,,,

What is most important is, the service is same, i.e., pharmacy. More importantly, as alluded to supra, there is overlap in the channel of trade.",,,,

The plaintiff has also marked 1st and 2nd commemorative stamps issued in the name of Apollo Hospital which have been marked as Ex.P.16,,,,

and P.17. A copy of Auditor''s certificate qua its revenue has been marked as Ex.P.18. The legal notice dated 9.7.2015 issued to the defendant,,,,

has been marked as Ex.P.19.,,,,

In the light of the discussion and narrative supra, I have applied my mind to the suit file that has been placed before me which includes",,,,

pleadings, deposition and documents, i.e., Exhibits. I have also given my careful consideration to the submissions made by learned counsel for",,,,

plaintiff. On a careful analysis of the suit file and submissions made before me, I have no hesitation in coming to the conclusion that this is a clear",,,,

case of infringement for the reasons set out supra. With regard to passing of action also, which is a common law remedy, I have no difficulty in",,,,

coming to the conclusion that the defendant has in fact committed passing off, as in the aforesaid peculiar facts of this case, the two are dovetailed.",,,,

With regard to deposition of P.W.1 (Mr.S.M.Mohan Kumar), which is by way of proof affidavit dated 28.11.2016, it is largely a reiteration of",,,,

pleadings as contained in the plaint. However, the deposition remains unchallenged. Notwithstanding the fact that deposition remains unchallenged,",,,,

I have perused the proof affidavit and I find that the evidence is cogent, clear and convincing. With regard to exhibits, I have already discussed",,,,

supra and legal principles also have been discussed supra.,,,,

In all these perspectives of the matter, the plaintiff is entitled to a decree as prayed for qua infringement of the said trademark and using the",,,,

name / mark ''Apollo'' and ''Apollo Pharmacy'' by themselves or in combination with other characters of words in connection any pharmaceutical,,,,

services and passing off. Now I turn to the other limbs of the prayers in the plaint.,,,,

Besides the prayer for injunction qua infringement of the said trademark and injunction qua passing off, there are five other limbs of prayer.",,,,

One limb pertains to a direction to defendant to surrender to the plaintiff all materials, media, etc. whether for invoicing, advertising or any other",,,,

purpose which contain the plaintiff''s registered trademark. The 5th limb of the prayer is for rendition of accounts, while the 6th limb of the prayer is",,,,

for awarding damages of Rs.25,00,000/-. The 7th limb of the prayer is for costs, while the last limb is a residuary prayer.",,,,

In the light of the discussion and the conclusion supra with regard to first, second and third limbs of prayer, it follows indisputably as a sequitur",,,,

that the plaintiff is entitled to a direction for surrendering of materials pertaining to offending trademarks as well as a direction for rendition of,,,,

accounts. Considering the trajectory of the suit and considering the fact that the plaintiff company has been constrained to file this suit, I have no",,,,

hesitation in holding that the plaintiff is entitled to costs of the suit.,,,,

With regard to the residuary limb of the prayer, as I have already acceded to the prayer for rendition of accounts, if the plaintiff pursues the",,,,

matter further and if the plaintiff decides to claim damages post rendition of accounts and quantification, it is made clear that plaintiff will be entitled",,,,

to do so based on this decree. For the present, no evidence has been let in to show quantification of damages of Rs.25,00,000/- and therefore,",,,,

that limb of the prayer is not acceded to.,,,,

To put it in a nutshell, in sum and substance, this suit is decreed with costs except one limb of prayer seeking Rs.25,00,000/- damages.",,,,