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Apollo Hospitals Enterprise Ltd. v/s Sai Apollo Pharmacy

    C.S. No. 205 of 2016

    Decided On, 06 August 2019

    At, High Court of Judicature at Madras


    For the Appellant: Vineet Subramani, Advocate. For the Defendant: ---------

Judgment Text

1. The suit has been filed by the plaintiffs seeking for the following reliefs;

"(a) Permanent injunction restraining the Defendant, its 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" , "Apollo Pharmacy", "Apollo Clinic" and "Apollo Hospital" either directly or by using any structurally, visually, phonetically or deceptively similar mark to the Plaintiff's trademark "Apollo", "Apollo Pharmacy", Apollo Clinic" and "Apollo Hospital"

(b)Permanent injunction restraining the Defendant, its 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", Apollo Pharmacy", "Apollo Clinic", "Apollo Hospital" and "ATM/Any Time Medicine" or any structurally, visually, phonetically or deceptively similar mark to the plaintiff's trademark "Apollo", "Apollo Pharmacy", "Apollo Clinic", "Apollo Hospital" and "ATM /Any Time Medicine"

(c)Permanent injunction restraining the Defendant, its 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", "Apollo Pharmacy" and "ATM/Any Time Medicine" by themselves or in combination with other characters or words in connection with any pharmaceutical establishment operated, or pharmaceutical services, rendered by the Defendant;

(d)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 "Apollo" and "Apollo Pharmacy"

(e) 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", "Apollo Pharmacy" and "ATM/Any Time Medicine" or any structurally, visually, phonetically or deceptively similar mark to the Plaintiff's trademark "Apollo", "Apollo Pharmacy" and ATM/Any Time Medicine" towards damages and when ascertained to be awarded to the Plaintiff and against the Defendant on account of use of the offending trade mark;

(f) Award damages of Rs. 25,00,000/- (Rupees Twenty Five Lakhs only);

(g) An order for costs of the proceedings; "

2. According to the Plaintiff, they are the multispeciality medical service provider across the spectrum of medical and health-care services and facilities right from diagnostic clinics, to general hospitals, multi-speciality hospitals, cancer hospitals, training institutes/colleges, pharmacies, etc. and is a pioneer in the field of treatment of various ailments. The Plaintiff approximately had 10,000 beds across 55 hospitals, about 2122 stand-alone Apollo Pharmacy outlets (this does not include the Apollo Pharmacy outlets attached to the Apollo medical centres, such as Hospitals, Clinics, etc.), over 100 primary care & diagnostic clinics, 60,000 rural touch points providing health-care services, global projects, 150 telemedicine units across 17 countries, health insurance services, global projects consultancy, 15 academic institutions and a Medical Research Foundation with a focus on global clinical trials, epidemiological studies, stem-cell and genetic research. The Plaintiff hospitals have provided medical care to more than 35 lakh patients from over 120 countries. Further the Plaintiff employs more than 70,000 persons with revenues in excess of 5,178 crores for the Year 2014-2015.

3. The Plaintiff adopted the unique trademark "Apollo" with respect to all its hospitals and other medical undertakings. Prior to the Plaintiff no other person has adopted the said trademark in the field of pharma, health-care and medical services and products. The Plaintiff has registered trademarks exclusively for the use of "Apollo", "Apollo Hospitals" and "Apollo Pharmacy" amongst others. Further the relevant marks "Apollo", "Apollo Pharmacy" and "Apollo Hospitals" trademarks are registered in favour of the Plaintiff, both individually and jointly with other marks but in all cases the registration is exclusively in favour of the Plaintiff and no other person is entitled to use the relevant registered trademark "Apollo", "Apollo Pharmacy", "Apollo Hospitals" or visually, phonetically, structurally or deceptively similar to the registered trademarks, in connection with medical services and goods, including pharmaceutical goods and services, and the dispensation thereof, whether directly or with any prefix or suffix or in combination with any other characters, words and devices. Exs.P1 to P13 are the registration certificates filed in this regard.

4. It is further stated that in addition to the 2,122 standalone Apollo Pharmacy Outlets, each Apollo Hospital, Apollo Speciality Hospital, Apollo Research Hospital, Apollo Clinic, Apollo Wellness Centre etc. contains an "Apollo Pharmacy" from which patients source high quality pharmaceuticals and medical products whether manufactured by the Plaintiff or others. It is further stated that the Plaintiff has spent a substantial amount of money in promoting its business and trademarks and has spent over 138 crores in 2014- 2015 for advertisement, publicity and marketing of its "Apollo" , "Apollo Pharmacy" and "Apollo Hospitals" and other related brands.

5. While so, the defendant calling itself as Sri Sai Apollo Pharmacy is rendering its services and selling goods under the name and style of Mahesh Apollo Pharmacy. Further, it is apparent from the Defendant's signboard the dominant aspect is "Apollo Pharmacy" and the word "Sri Sai" are sidelined. Hence, the Defendant is clearly and illegally using the Plaintiff's registered trademark "Apollo Pharmacy" and infringing the Plaintiff's registered trademark and passing off its services and sells goods as the Plaintiff, and unsurp the business, custom, reputation and goodwill of the Plaintiff. The photos of the Defendant's as well as the Plaintiff's signboard were marked as Exs.P14 and P15.

6. It is further stated that the Defendant being well aware of the Plaintiff's establishments, and particularly of the goodwill associated with the registered trademark "Apollo" and "Apollo Pharmacy", and with the malafide intention of usurping the trade-name and trademark and the enormous goodwill associated with the Plaintiff's trademark "Apollo" and "Apollo Pharmacy", has wilfully and wantonly used a structurally, visually, phonetically and deceptively similar mark to the Plaintiff's registered Trademarks "Apollo"and "Apollo Pharmacy". Therefore, after coming to know about the same, the Plaintiff sent a notice through its Counsel to the Defendant on 21.09.2015, which was marked as Ex.P18, calling upon it to cease and desist from using words or marks deceptively similar or identical to its registered trademarks "Apollo" and "Apollo Pharmacy", for which there is no response till date. Hence, the present suit has been filed seeking the aforesaid reliefs.

7. After filing of the suit, the suit summons have been served against the sole Defendant. Despite service of summons on the sole defendant and its name printed in the cause-list there was no representation on behalf of them when the matter was called on 18.06.2019. Hence, the Sole Defendant was set ex-parte on 18.06.2019 and thereafter the matter was posted before the learned Additional Master II for recording ex-parte evidence.

8. In order to substantiate the claim of the Plaintiff, one Mr.S.M.Mohan Kumar, Manager-Legal of the plaintiff was examined as P.W.1. and filed certain documents, which were marked as Ex.P1. to Ex.P.18.

9. I have heard the learned counsel for the Plaintiff and also gone through the Proof Affidavit, averments in the Plaint as well as the documents filed on the side of the Plaintiff.

10. A perusal of Exs.P1 to P12- Trademark Registration Certificates, would go to show that the Plaintiff's Trademark viz., 'APOLLO' and 'Apollo Pharmacy got registered in the Trademark Registry and the same is valid and subsisting as on date.

11. On a perusal of Exs.P13 and P14- Signboards of Plaintiff and Defendant, it is clear that the Defendant is using the word 'A

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pollo Pharmacy' along the word 'Sai' with the similar font and by reducing the font size. The word 'Sai' is almost ?th of the font size of the 'Apollo Pharmacy'. 12. Further, the Government of India has issued two commemorative postal stamps in honour of the Plaintiff, which was marked as Ex.P15 and Ex.P16. 13. On considering the overall pleadings, evidence and also the submissions made on behalf of the Plaintiff this Court is of the view that in the present case, no doubt the defendant is using the word 'Apollo' as part of his trademark. Further, this Court found that the part of the defendant's trade name contains the whole registered trademark of the Plaintiff. This clearly amounts to infringement in terms of section 29 of the Trade Marks Act,. Therefore, the Plaintiff is entitled to get the relief as prayed for. 14. Resultantly, the suit is decreed as prayed for with costs of Rs. 2,00,000/- (Rupees Two Lakhs only).