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Apollo Hospitals Enterprise Ltd., Represented by its Directors, Chennai v/s BSR Superspeciality Hospitals Limited, Represented by its Directors, Chattisgarh


Company & Directors' Information:- APOLLO HOSPITALS ENTERPRISE LIMITED [Active] CIN = L85110TN1979PLC008035

Company & Directors' Information:- S V S HOSPITALS PRIVATE LIMITED [Active] CIN = U85110TG2007PTC052534

Company & Directors' Information:- D D HOSPITALS PRIVATE LIMITED [Active] CIN = U85110TN2009PTC073765

Company & Directors' Information:- A AND E HOSPITALS PRIVATE LIMITED [Active] CIN = U85110KL2003PTC016562

Company & Directors' Information:- N P K ENTERPRISE PRIVATE LIMITED [Active] CIN = U01400MH2007PTC174648

Company & Directors' Information:- CHENNAI HOSPITALS PRIVATE LIMITED [Active] CIN = U85110TN2013PTC094049

Company & Directors' Information:- L L ENTERPRISE PRIVATE LIMITED [Active] CIN = U26960AS2002PTC006815

Company & Directors' Information:- J M V ENTERPRISE PRIVATE LIMITED [Active] CIN = U51109MH2008PTC186891

Company & Directors' Information:- G R ENTERPRISE PRIVATE LIMITED [Active] CIN = U51109AS1998PTC005599

Company & Directors' Information:- B B M ENTERPRISE PVT. LTD. [Under Liquidation] CIN = U15520WB1995PTC072307

Company & Directors' Information:- J N S ENTERPRISE PRIVATE LIMITED [Strike Off] CIN = U51109WB2009PTC135819

Company & Directors' Information:- G C ENTERPRISE (INDIA) PVT LTD [Active] CIN = U19129WB1992PTC055125

Company & Directors' Information:- R R HOSPITALS PRIVATE LIMITED [Active] CIN = U85100HR2011PTC042705

Company & Directors' Information:- M S B ENTERPRISE PRIVATE LIMITED [Active] CIN = U70101DL1997PTC091079

Company & Directors' Information:- K P S HOSPITALS PRIVATE LIMITED [Active] CIN = U85110TZ1994PTC004918

Company & Directors' Information:- A B N ENTERPRISE PVT LTD [Active] CIN = U26941WB1996PTC080553

Company & Directors' Information:- B R S HOSPITALS PRIVATE LIMITED [Active] CIN = U85110TN1988PTC016237

Company & Directors' Information:- V H M HOSPITALS PRIVATE LIMITED [Active] CIN = U85110TN2009PTC073497

Company & Directors' Information:- A AND R ENTERPRISE PRIVATE LIMITED [Active] CIN = U51900DL2011PTC226264

Company & Directors' Information:- J P M ENTERPRISE PRIVATE LIMITED [Strike Off] CIN = U99999MH1965PTC013316

Company & Directors' Information:- D B R HOSPITALS PRIVATE LIMITED [Active] CIN = U85110TG2003PTC041648

Company & Directors' Information:- J K ENTERPRISE PVT LTD [Active] CIN = U55101AS1986PTC002580

Company & Directors' Information:- S S G ENTERPRISE (INDIA) PRIVATE LIMITED [Active] CIN = U74899DL2000PTC103084

Company & Directors' Information:- M T ENTERPRISE PRIVATE LIMITED [Strike Off] CIN = U19201WB2001PTC092823

Company & Directors' Information:- S M R HOSPITALS PVT LTD [Strike Off] CIN = U85110DL2005PTC143152

Company & Directors' Information:- M S R HOSPITALS PRIVATE LIMITED [Active] CIN = U85110AP1994PTC017731

Company & Directors' Information:- T K D ENTERPRISE PRIVATE LIMITED [Active] CIN = U17122TN2013PTC090555

Company & Directors' Information:- M M HOSPITALS PRIVATE LIMITED [Under Process of Striking Off] CIN = U85110UP1993PTC015371

Company & Directors' Information:- B. T. H. ENTERPRISE PRIVATE LIMITED [Strike Off] CIN = U45400MH2010PTC209784

Company & Directors' Information:- S J ENTERPRISE PRIVATE LIMITED [Active] CIN = U51109WB1999PTC090492

Company & Directors' Information:- APOLLO INDIA PRIVATE LIMITED [Active] CIN = U24290DL2012PTC237964

Company & Directors' Information:- T S ENTERPRISE PRIVATE LIMITED [Active] CIN = U51909WB2020PTC239687

Company & Directors' Information:- K C HOSPITALS PRIVATE LIMITED [Strike Off] CIN = U85110PB2012PTC035880

Company & Directors' Information:- B M P ENTERPRISE PRIVATE LIMITED [Strike Off] CIN = U74210TN2005PTC056329

Company & Directors' Information:- M N ENTERPRISE PRIVATE LIMITED [Active] CIN = U51101MH2012PTC238475

Company & Directors' Information:- N D K ENTERPRISE PRIVATE LIMITED [Strike Off] CIN = U15203MH2001PTC131796

Company & Directors' Information:- C J ENTERPRISE PRIVATE LIMITED [Strike Off] CIN = U51909MH2002PTC136247

Company & Directors' Information:- B M HOSPITALS PRIVATE LIMITED [Active] CIN = U85110TN2005PTC058062

Company & Directors' Information:- L A C ENTERPRISE PRIVATE LIMITED [Strike Off] CIN = U70102KA1984PTC006195

Company & Directors' Information:- S A HOSPITALS LIMITED [Strike Off] CIN = U85110MH2002PLC136697

Company & Directors' Information:- M. B. HOSPITALS PRIVATE LIMITED [Active] CIN = U85100HR2010PTC041489

Company & Directors' Information:- M G M I HOSPITALS (INDIA) PRIVATE LIMITED [Active] CIN = U85195KA2010PTC052058

Company & Directors' Information:- M AND D HOSPITALS PRIVATE LIMITED [Active] CIN = U85110DL2002PTC117618

Company & Directors' Information:- H A P ENTERPRISE PRIVATE LIMITED [Strike Off] CIN = U74900UP2014PTC063344

Company & Directors' Information:- V J T ENTERPRISE PRIVATE LIMITED [Active] CIN = U45201GJ2012PTC068630

Company & Directors' Information:- M. R. HOSPITALS PRIVATE LIMITED [Strike Off] CIN = U85110UP1995PTC018165

Company & Directors' Information:- S P HOSPITALS PVT LTD [Strike Off] CIN = U85110HP1992PTC012651

Company & Directors' Information:- B.S.R. CORPORATION PRIVATE LIMITED [Active] CIN = U29305RJ2012PTC040626

Company & Directors' Information:- J R R ENTERPRISE PRIVATE LIMITED [Strike Off] CIN = U45400MH2013PTC241527

Company & Directors' Information:- J P R D ENTERPRISE PRIVATE LIMITED [Strike Off] CIN = U70102UR2010PTC033236

Company & Directors' Information:- V K R HOSPITALS PRIVATE LIMITED [Strike Off] CIN = U85110TG2011PTC075009

Company & Directors' Information:- N D ENTERPRISE PRIVATE LIMITED [Active] CIN = U72200WB2013PTC222749

Company & Directors' Information:- N D ENTERPRISE PRIVATE LIMITED [Active] CIN = U72200JH2013PTC001004

Company & Directors' Information:- C P E C APOLLO PRIVATE LIMITED [Active] CIN = U74999DL2015PTC283774

Company & Directors' Information:- V P HOSPITALS PRIVATE LIMITED [Active] CIN = U85110DL2011PTC220548

Company & Directors' Information:- G S HOSPITALS PRIVATE LIMITED [Active] CIN = U85100AP2014PTC094902

Company & Directors' Information:- G. N. ENTERPRISE PRIVATE LIMITED [Active] CIN = U14294RJ2018PTC061147

Company & Directors' Information:- L. J. R. ENTERPRISE PRIVATE LIMITED [Active] CIN = U29100MH2019PTC329418

Company & Directors' Information:- ENTERPRISE PRIVATE LIMITED [Dissolved] CIN = U74900KL1942PTC000334

    Civil Suit No. 446 of 2019

    Decided On, 17 December 2019

    At, High Court of Judicature at Madras

    By, THE HONOURABLE DR. JUSTICE G. JAYACHANDRAN

    For the Plaintiff: Vineet Subramani, Advocate. For the Defendant: Exparte.



Judgment Text


(Prayer: This Civil Suit is filed under Order IV Rule 1 of the Original Side Rules r/w Sections 2(1)(c) (xvii) and Section 7 of the Commercial Courts Act, 2015 r/w Sections 27 to 31, 134 & 135 of the Trade Marks Act, 1999 for the following reliefs:-

(a) permanent injunction restraining the defendant, its directors, shareholders, men, agents, partner, associate, officer, representative, servant and all other persons acting on defendant’s behalf from in any manner infringing the plaintiff’s registered trade mark ‘Apollo’ and ‘Apollo Hospital’ and logo (device) marks either directly or by using any structurally, visually, phonetically or deceptively similar mark to the plaintiff’s trademark ‘Apollo’ and ‘Apollo Hospital’ and logo (device) marks;

(b) permanent injunction restraining the defendant, its directors, shareholders, men, agents, partner, associate, officer, representative, servant and all other persons acting on defendant’s behalf from in any manner passing off their services as that of the plaintiff’s by either using the plaintiff’s trademark ‘Apollo’ and Apollo Hospital’ and logo (device) marks or any structurally, visually, phonetically or deceptively similar mark to the plaintiff’s trademark ‘Apollo’ and ‘Apollo Hospital’ and logo (device) marks;

(c) permanent injunction restraining the defendant, its directors, shareholders, men, agents, partner, associate, officer, representative, servant and all other persons acting on defendant’s behalf from in any manner using the name / mark ‘Apollo’ and Apollo Hospital’ and logo (device) marks by themselves or in combination with other characters or words in connection with any medical establishment operated, or medical services rendered, or in any website or uniform resource locator or domain name by the defendant;

(d) mandatory injunction directing the defendant, its directors, shareholders, men, agents, partner, associate, officer, representative, servant and all other persons acting on defendant’s behalf or for its benefit in any manner to transfer the registration of website ‘www.apollobsr.com’ to plaintiff;

(e) the defendant be directed to surrender to the plaintiff all materials, media, etc., whether for invoicing, advertising or any other purpose which contain or bear the plaintiff’s registered trademark or any structurally, visually, phonetically or deceptively similar mark to the plaintiff’s trademark ‘Apollo’ and ‘Apollo Hospital’ and logo (device) marks;

(f) The defendant be directed to render accounts of profits of the defendant in favour of the plaintiff to examine and ascertain the profits made by the defendant, and thereafter on enquiry final decree be passed and or an order for rendition of accounts of profits made by the defendant by using the mark ‘Apollo’ and ‘Apollo Hospital’ and logo (device) marks or any structurally, visually, phonetically or deceptively similar mark to the plaintiff’s trademark ‘Apollo’ and ‘Apollo Hospital’ and logo (device) marks and towards damages as and when ascertained to be awarded to the plaintiff and against the defendant on account of use of the offending trade mark;

(g) Award damages of Rs.1,00,00,000/- (Rupees one crore only);

(h) Declaration that the plaintiff’s registered trademarks ‘Apollo’ and ‘Apollo Hospital’ and logo (device) marks are ‘well known trade marks’ under Section 2(1)(zg) of the Trademarks Act, 1999;

(i) An order for costs of the proceedings

(j) Such other order or orders as this Hon’ble Court may deem fit and proper in the facts and circumstances of the present case.)

1. Plaint averments in nutshell:

The plaintiff company was incorporated as a Public Limited Company on 5th December 1979 under the provisions of the Companies Act. The plaintiff’s flagship ‘Apollo Hospital’ was inaugurated in the year 1983 with 150 beds. Presently, the plaintiff owns and operates medical facilities throughout India and Abroad. The plaintiff is recognised as the forerunner of integrated healthcare in Asia and is globally recognised as a top integrated healthcare service provider which manages hospitals, diagnostic clinics, dispensing pharmacies and consultancy services, through its Apollo Hospitals, Apollo Clinics, Apollo Pharmacy, etc across the world. The plaintiff’s establishment includes approximately 10,164 beds across 70 hospitals, 3272 pharmacies, 648 Primary Care and Diagnostic Clinics, 150 telemedicine centres, 166 electronic urban primary healthcare centers, 60,000 rural teleclinics providing health care to more than 35 lakhs people.

2. The plaintiff has adopted the unique trademark “Apollo” and “Apollo Hospital” to be used as its trademark with respect to all its hospitals and other medical undertakings. Prior to the plaintiff, no other person had adopted the said “Apollo” and “Apollo Hospital” trademark in the field of pharma, healthcare and medical services and products. The plaintiff has registered “Apollo”, “Apollo Hospital”, “Apollo Pharmacy” and other associated marks. Till date, there has been no objection nor any limitation placed on the plaintiff’sregistered trademarks. The trademarks are valid and subsisting in favour of the plaintiff as on date. The plaintiff has further registered its logo ‘Apollo’ under various classes related to health care.

3. The names “Apollo” and “Apollo Hospital” are synonymous with high quality healthcare products and services and are uniquely associated by the public at large with the plaintiff and its business. The trademarks ‘Apollo’ and ‘Apollo Hospital’ are assets of enormous value as symbolic of the plaintiff and its quality services, goods, facilities and goodwill. Under these circumstances, the plaintiff initially entered into a Licensing cum Operations Management Agreement (in short ‘LOM Agreement’) with the defendant on 14/06/2007 to the defendant’s150 bed hospital in Bhilai, Chhattisgarh as a Multi-speciality hospital. Under the LOM agreement, the plaintiff managed the operations of the defendant’s hospital and hence, it was called as “Apollo BSR Hospital, Bhilai”. It was specifically provided that the name would include Plaintiff’sregistered trademarks “Apollo/Apollo Hospital” and log(device) only till the duration of the LOM agreement.

4. The LOM agreement got terminated on 30/06/2010. The plaintiff withdrew its management services from the defendant’sfacility because, the defendant failed to pay the payment as agreed under the contract. Subsequently, the defendant agreed to pay a sum Rs.83,87,000/- in full and final settlement of Plaintiff’s dues, subject to defendant being permitted to continue the use of the plaintiff’sregistered trademark “Apollo”. Accordingly, the plaintiff and the defendant have entered into an franchise Agreement on 10/11/2010 whereby the plaintiff permitted the defendant to use the plaintiff’s registered trademark “Apollo” as part of defendant’s hospital name. Under the franchise agreement, the defendant agreed to pay the plaintiff a sum of Rs.40,00,000/- per annum in two equal semi-annual installments in advance. Further, the agreement also provided for 18% interest in case of delay in payment. The said franchise agreement was periodically renewed till it was finally terminated on 17/01/2018.

5. Even after the termination, the defendant continued to use the plaintiff’strademark and logo (device). In the defendant website, “www.apollobsr.com” plaintiff’s registered trademark “Apollo” and its logo is found. Thus, the registered trademark and logo(device) of the plaintiff is misused and infringed by the defendant. The defendant, a chronic defaulter in payment was asked to clear the dues but failed to clear the dues. Therefore, the franchise agreement was not renewed after 17/01/2018 and got terminated. In view of the arbitration clause in the agreement, the plaintiff has initiated proceedings against the defendant under the Arbitration and Conciliation Act, 1996 to recover the outstanding franchise fee due to the plaintiff.

6. The word “Apollo” and “Apollo Hospital” are indelibly associated with the plaintiff which are seeing strong repeat/regular business from the public with strong economic value attributable to the trademarks. Person like the defendant, who does not adopt similar high standard of care puts the patients at risk. The defendant by falsely using the plaintiff name and registered trademark is passing off its services as that of the plaintiff, thereby causing loss and injury to the plaintiff’sreputation, business and registered trademark and also substantial danger to the public at large.

7. After termination of the franchise agreement, the plaintiff thrice issued notice through its counsel to the defendant to cease and desist from using the words and marks deceptively similar or identical to its registered trademark. The defendant though came forward to settle the dispute, that did not fructify. However, till date, the defendant is unlawfully using the trademark and logo of the plaintiff. Hence, the plaintiff has suffered substantial financial loss and damages to its reputation and goodwill. Therefore pray for the following reliefs:-

(a) permanent injunction restraining the defendant, its directors, shareholders, men, agents, partner, associate, officer, representative, servant and all other persons acting on defendant’s behalf from in any manner infringing the plaintiff’s registered trade mark ‘Apollo’ and ‘Apollo Hospital’ and logo (device) marks either directly or by using any structurally, visually, phonetically or deceptively similar mark to the plaintiff’s trademark ‘Apollo’ and ‘Apollo Hospital’ and logo (device) marks;

(b) permanent injunction restraining the defendant, its directors, shareholders, men, agents, partner, associate, officer, representative, servant and all other persons acting on defendant’s behalf from in any manner passing off their services as that of the plaintiff’s by either using the plaintiff’s trademark ‘Apollo’ and Apollo Hospital’ and logo (device) marks or any structurally, visually, phonetically or deceptively similar mark to the plaintiff’s trademark ‘Apollo’ and ‘Apollo Hospital’ and logo (device) marks;

(c) permanent injunction restraining the defendant, its directors, shareholders, men, agents, partner, associate, officer, representative, servant and all other persons acting on defendant’s behalf from in any manner using the name / mark ‘Apollo’ and Apollo Hospital’ and logo (device) marks by themselves or in combination with other characters or words in connection with any medical establishment operated, or medical services rendered, or in any website or uniform resource locator or domain name by the defendant;

(d) mandatory injunction directing the defendant, its directors, shareholders, men, agents, partner, associate, officer, representative, servant and all other persons acting on defendant’s behalf or for its benefit in any manner to transfer the registration of website ‘www.apollobsr.com’ to plaintiff;

(e) the defendant be directed to surrender to the plaintiff all materials, media, etc., whether for invoicing, advertising or any other purpose which contain or bear the plaintiff’s registered trademark or any structurally, visually, phonetically or deceptively similar mark to the plaintiff’s trademark ‘Apollo’ and ‘Apollo Hospital’ and logo (device) marks;

(f) The defendant be directed to render accounts of profits of the defendant in favour of the plaintiff to examine and ascertain the profits made by the defendant, and thereafter on enquiry final decree be passed and or an order for rendition of accounts of profits made by the defendant by using the mark ‘Apollo’ and ‘Apollo Hospital’ and logo (device) marks or any structurally, visually, phonetically or deceptively similar mark to the plaintiff’s trademark ‘Apollo’ and ‘Apollo Hospital’ and logo (device) marks and towards damages as and when ascertained to be awarded to the plaintiff and against the defendant on account of use of the offending trade mark;

(g) Award damages of Rs.1,00,00,000/- (Rupees one crore onl

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y); (h) Declaration that the plaintiff’s registered trademarks ‘Apollo’ and ‘Apollo Hospital’ and logo (device) marks are ‘well known trade marks’ under Section 2(1)(zg) of the Trademarks Act, 1999; (i) An order for costs of the proceedings; (j) Such other order or orders as this Hon’ble Court may deem fit and proper in the facts and circumstances of the present case. 8. The plaintiff was permitted to serve summons privately. Accordingly, the plaintiff has taken steps thrice. The defendant has refused to receive the posts twice and returned to the sender. The affidavit of service to that effect was filed on 31/07/2019 and 26/08/2019. The third notice delivered to the defendant on 31/10/2019. The internet tracking of the postal Department annexed along with the affidavit of service filed on 04/11/2019. Taking note of these facts, the defendant was set ex-parte on 19/11/2019. Exparte evidence was recorded by the Master. 9. PW-1 - S.M.Mohankumar, Manager Legal of the plaintiff company examined on behalf of the plaintiff has filed proof affidavit along with 42 documents in support of the plaintiff case. Exs.P-1 to P-42 proves the plaint averments as stated above. Since, the defendant has remained exparte, no contra evidence is available. Hence, the Civil Suit is decreed as prayed for with costs.
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