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Apollo Hospitals & Enterprises Ltd., Chennai v/s Mahesh Apollo Pharmacy


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:- CHENNAI HOSPITALS PRIVATE LIMITED [Active] CIN = U85110TN2013PTC094049

Company & Directors' Information:- S D PHARMACY P LTD [Active] CIN = U24231KL1989PTC005420

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

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

Company & Directors' Information:- MAHESH ENTERPRISES PVT LTD [Active] CIN = U10102AS1995PTC004394

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:- D B R HOSPITALS PRIVATE LIMITED [Active] CIN = U85110TG2003PTC041648

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:- M M HOSPITALS PRIVATE LIMITED [Under Process of Striking Off] CIN = U85110UP1993PTC015371

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

Company & Directors' Information:- K N S PHARMACY PRIVATE LIMITED [Active] CIN = U51397KL2013PTC033727

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

Company & Directors' Information:- R S ENTERPRISES CHENNAI PRIVATE LIMITED [Strike Off] CIN = U45202TN2014PTC095664

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

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

Company & Directors' Information:- U. P. PHARMACY LIMITED [Active] CIN = U24232DL2010PLC210326

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:- APOLLO ENTERPRISES PVT LTD [Strike Off] CIN = U45201DL1978PTC008993

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

Company & Directors' Information:- A K G PHARMACY PRIVATE LIMITED [Active] CIN = U51397DL2003PTC119132

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

Company & Directors' Information:- MAHESH ENTERPRISES PRIVATE LIMITED [Strike Off] CIN = U93090TN1968PTC005646

Company & Directors' Information:- S R PHARMACY PRIVATE LIMITED [Strike Off] CIN = U24233MH2012PTC230199

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

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:- R Z PHARMACY PRIVATE LIMITED [Strike Off] CIN = U24232KA2012PTC064099

Company & Directors' Information:- APOLLO PHARMACY PVT LTD [Strike Off] CIN = U24239PB1985PTC006583

Company & Directors' Information:- J AND M COMPANY PHARMACY LIMITED [Dissolved] CIN = U99999MH1946PTC005153

    C.S.No. 724 of 2014

    Decided On, 12 April 2016

    At, High Court of Judicature at Madras

    By, THE HONOURABLE MR. JUSTICE M. SATHYANARAYANAN

    For the Plaintiff: M/s. Vineet Subramani, Advocate. For the Defendant: ----



Judgment Text

M. Sathyanarayanan, J.

1. The plaintiff would aver as follows:

1.1. The plaintiff is a multi-specialty medical service provider across the spectrum of medical and health care services and facilities right from diagnostic clinics to general hospitals, multi-specialty hospitals, cancer hospitals, training institutes/colleges, pharmacies etc., and is a pioneer in the field of treatment of various ailments. It is further averred that the trademarks "Apollo" and "Apollo Pharmacy" are registered in favour of the plaintiff, both individually and jointly with other marks, exclusively in favour of the plaintiff and no other person is entitled to use the registered trademark "Apollo" and "Apollo Pharmacy" 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 or devices. It is the specific case of the plaintiff that the defendant called itself as "Mahesh Apollo Pharmacy" and rendering it's services under the name and style of "Mahesh Apollo Pharmacy" and it is apparent from the defendant's signboard that the word "Mahesh" is sidelined and the word "Apollo Pharmacy" is prominently displayed.

1.2. It is also stated by the plaintiff that in all its hospitals, pharmacies and allied services, the registered trademark "Apollo" has been used by the plaintiff and in the State of Andhra Pradesh also, the plaintiff is running Apollo General and Specialty Hospital, Apollo Clinic/Diagnostic Centres and there are nearly 350 Apollo Pharmacies in multiple prominent locations. It is the specific case of the plaintiff that the defendant with 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 trademark "Apollo" and "Apollo Pharmacy" and the defendant simply by adding few characters with the words "Apollo Pharmacy", seeks to gain enormous goodwill earned by the plaintiff on account of the said trademark and the said act of the defendant is nothing but fraudulent and prays for a judgment and decree restraining the defendant in any manner infringing the plaintiff's trademark and passing of the goods by using the plaintiff's trademark "Apollo", "Apollo Pharmacy" and "Apollo Hospital" as they were deceptively similar marks and other consequential benefits.

2. The learned Master recorded the fact that despite completion of service, the defendant did not enter appearance and directed the listing of the matter before this Court and accordingly it was listed on 18.12.2015 and on that day, the defendant neither entered appearance nor filed the written statement and therefore, the defendant was called absent and set ex parte and evidence was recorded by the learned Additional Master No.II and Thiru.S.M. Mohan Kumar, Legal Manager of the plaintiff company, in pursuant to resolution passed by the Board of Directors dated 11.05.2003, marked as Ex.P1, has filed a proof affidavit in lieu of chief examination and also marked Exs.P1-P16.

3. The learned counsel appearing for the plaintiff has drawn the attention of this Court to the pleadings, oral and documentary evidence and would submit that Exs.P2 to P13 are the Trademark Registration Certificates of "Apollo Pharmacy" and "Apollo Hospitals" etc. and further invited the attention of this Court to Ex.P14- Photos of the defendant's signboard and would submit that in the said signboard the word "Mahesh" has been sidelined and the word "Apollo Pharmacy" has been prominently displayed and therefore, the defendant is to be restrained by granting a judgment and decree as prayed for.

4. This Court has carefully considered the rival submissions and also perused the pleadings, oral and documentary evidence as well as other materials.

5. The following questions arises for consideration and adjudication:

(I) Whether plaintiff is the registered trademark holder of "Apollo", "Apollo Pharmacy" and "Apollo Hospital"?

(II) Whether the defendant has deceptively adopted the plaintiff's name and registered trademark in respect of pharmaceutical and medical services?

(III) Whether the plaintiff is entitled to get a judgment and decree as prayed for?

(IV) To what other reliefs, the plaintiff is entitled?

Issue No. 1

6. Exs.P2 to P13 are the Trade Mark Registration Certificates issued by the Trademark Registry for various classes in respect of Apollo Hospitals and Apollo Pharmacy and it is the specific case of the plaintiff that the plaintiff started using the name "Apollo" as early as in the year 1988 and due to quality service rendered, had developed very good goodwill and the defendant, in order to take advantage of the same, started running pharmacies in the name of "Mahesh Apollo Pharmacy" and as per Ex.P14- photograph of the defendant's signboard, the word "Mahesh" has been sidelined and the word "Apollo Pharmacy" has been prominently displayed and both are almost with similar colour background and therefore, the defendant is to be restrained by passing a judgment and decree. This Court finds considerable force in the submission made by the learned counsel appearing for the plaintiff that the plaintiff is the registered Trademark holder right from the year 2007 and apart from it, also claims to be using the same right from the year 1988. In the light of the same, the plaintiff is entitled to get protection.

7. Therefore, Issue No. 1 is answered in affirmative in favour of the plaintiff.

Issue No. 2

8. As already pointed out, the defendant did not choose to enter appearance and as a consequence, did not take the stand that it is using the said trademark even much earlier to that of the plaintiff. It is the case of the plaintiff that they are using the word "Apollo" right from the year 1988 and got registration certificates during the years 2007- 2009 respectively. A perusal of Ex.P14 – photograph of the defendant's signboard would disclose that the defendant had fraudulently adopted similar trademark of the plaintiff by sidelining the words "Mahesh" and prominently displaying the words "Apollo Pharmacy".

9. Therefore, Issue No. 2 is answered in affirmative in favour of the plaintiff.

Issue No. 3

10. The plaintiff, through overwhelming oral and documentary evidence, had probablised it's case. Therefore, Issue No. 3 is answered in affirmative in favour of the plaintiff.

Issue No. 4

11. In view of the reasons assigned by this Court in respect of Issue Nos. 1 to 3, Issue No. 4 is answered accordingly.

12. In the result, there shall be a judgment and decree for -

(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", and "Apollo Hospital" either directly or by using any structurally, visually, phonetically and deceptively similar mark to the plaintiff's trademark "Apollo", "Apollo Pharmacy", 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 goods and services as that of the plaintiff's by either using the plaintiff's trademark "Apollo", "Apollo Pharmacy", and "Apollo Hospital" or any structurally, visually, phonetically or deceptively similar mark to the plaintiff's trademark "Apollo", "Apollo Pharmacy", and "Apollo Hospital";

(c) Permanent injunction retraining 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" and "Apollo Pharmacy" 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,

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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 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" and "Apollo Pharmacy" or any structurally, visually, phonetically or deceptively similar mark to the plaintiff's trademark "Apollo" and "Apollo Pharmacy" towards damages as and when ascertained to be awarded to the plaintiff and against the defendant on account of use of the offending trademark; (f) the plaintiff is also entitled to cost of the Suit.
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