w w w . L a w y e r S e r v i c e s . i n



Mankind Pharma Ltd V/S Ultrakind Health Care and Others


Company & Directors' Information:- MANKIND PHARMA LIMITED [Active] CIN = U74899DL1991PLC044843

Company & Directors' Information:- U C C CARE PRIVATE LIMITED [Active] CIN = U74899DL1986PTC024474

Company & Directors' Information:- K D L PHARMA LIMITED [Under Liquidation] CIN = U24231WB1989PLC047198

Company & Directors' Information:- R. D. M. CARE (INDIA) PRIVATE LIMITED [Active] CIN = U74899DL1993PTC056151

Company & Directors' Information:- M R HEALTH CARE PRIVATE LIMITED [Active] CIN = U24232UR2006PTC031319

Company & Directors' Information:- HEALTH CARE (INDIA) LIMITED [Active] CIN = U24231TN1988PLC016493

Company & Directors' Information:- J D HEALTH CARE PRIVATE LIMITED [Active] CIN = U15497WB2004PTC097974

Company & Directors' Information:- R S M PHARMA PRIVATE LIMITED [Active] CIN = U85110KA1989PTC009974

Company & Directors' Information:- J P N PHARMA PRIVATE LIMITED [Active] CIN = U24230MH2004PTC145446

Company & Directors' Information:- U S PHARMA (INDIA) PRIVATE LIMITED [Active] CIN = U24230MH2003PTC140514

Company & Directors' Information:- T. C. HEALTH CARE PRIVATE LIMITED [Active] CIN = U74899UP1985PTC037371

Company & Directors' Information:- V V L PHARMA PRIVATE LIMITED [Active] CIN = U24230MH2006PTC160047

Company & Directors' Information:- Y K M HEALTH CARE PRIVATE LIMITED [Active] CIN = U85100AP2007PTC056256

Company & Directors' Information:- S V S HEALTH CARE PRIVATE LIMITED [Active] CIN = U85110UR1991PTC013184

Company & Directors' Information:- R K G PHARMA PVT LTD [Active] CIN = U74899DL1969PTC005111

Company & Directors' Information:- A R K HEALTH CARE PVT LTD [Active] CIN = U24299CH1997PTC020705

Company & Directors' Information:- R S K HEALTH CARE PRIVATE LIMITED [Strike Off] CIN = U85100DL1992PTC050311

Company & Directors' Information:- I G PHARMA LIMITED [Active] CIN = U24232DL2005PLC137560

Company & Directors' Information:- R. N. K. HEALTH CARE PRIVATE LIMITED [Active] CIN = U74900WB2013PTC195733

Company & Directors' Information:- D L PHARMA PRIVATE LIMITED [Strike Off] CIN = U24230TG1996PTC023180

Company & Directors' Information:- N E HEALTH CARE PRIVATE LIMITED [Strike Off] CIN = U85120AS2003PTC007118

Company & Directors' Information:- A G L PHARMA PRIVATE LIMITED [Active] CIN = U24232TN2006PTC060592

Company & Directors' Information:- K R HEALTH CARE PRIVATE LIMITED [Active] CIN = U85110TZ2000PTC009327

Company & Directors' Information:- M R PHARMA PRIVATE LIMITED [Active] CIN = U24230MH1996PTC100199

Company & Directors' Information:- S S HEALTH CARE PRIVATE LIMITED [Active] CIN = U74899DL1987PTC030080

Company & Directors' Information:- M C W PHARMA PVT LTD [Active] CIN = U24232MP1988PTC004693

Company & Directors' Information:- S P HEALTH CARE PRIVATE LIMITED [Active] CIN = U24232WB2003PTC097319

Company & Directors' Information:- A AND A HEALTH CARE PRIVATE LIMITED [Active] CIN = U33112DL2002PTC114051

Company & Directors' Information:- A B PHARMA PRIVATE LIMITED [Strike Off] CIN = U74899DL1987PTC028777

Company & Directors' Information:- CARE PHARMA (INDIA) LIMITED [Strike Off] CIN = U24231TZ1984PLC001495

Company & Directors' Information:- N B PHARMA PRIVATE LIMITED [Active] CIN = U24239HR2002PTC034813

Company & Directors' Information:- G AND G PHARMA (INDIA) LIMITED [Active] CIN = U74899DL1995PLC070349

Company & Directors' Information:- PHARMA (HEALTH) INDIA PVT LTD [Active] CIN = U24232HR1995PTC032675

Company & Directors' Information:- PHARMA (HEALTH) INDIA PRIVATE LIMITED [Strike Off] CIN = U74899DL1995PTC032675

Company & Directors' Information:- K & K HEALTH CARE PRIVATE LIMITED [Active] CIN = U74899DL1994PTC059782

Company & Directors' Information:- B L PHARMA LIMITED [Active] CIN = U24230TG1998PLC029483

Company & Directors' Information:- CARE U PHARMA PRIVATE LIMITED [Active] CIN = U51909TN2021PTC145159

Company & Directors' Information:- Y L PHARMA PRIVATE LIMITED [Active] CIN = U24230HP2021PTC008443

Company & Directors' Information:- N R P HEALTH CARE PRIVATE LIMITED [Active] CIN = U85300BR2021PTC052209

Company & Directors' Information:- CARE AND CARE PHARMA PRIVATE LIMITED [Active] CIN = U24239UP2019PTC115882

Company & Directors' Information:- P R P PHARMA LIMITED [Strike Off] CIN = U24233DL2004PLC127606

Company & Directors' Information:- A D PHARMA PRIVATE LIMITED [Strike Off] CIN = U74899DL1984PTC017927

Company & Directors' Information:- M B AND K PHARMA PRIVATE LIMITED [Active] CIN = U85110UP1993PTC015566

Company & Directors' Information:- E CARE INDIA PRIVATE LIMITED [Active] CIN = U72300TN2005PTC058342

Company & Directors' Information:- A M C HEALTH CARE INDIA PRIVATE LIMITED [Active] CIN = U85110TN2008PTC066650

Company & Directors' Information:- O. L. HEALTH CARE PRIVATE LIMITED [Active] CIN = U85300WB2017PTC220471

Company & Directors' Information:- D R L PHARMA PRIVATE LIMITED [Active] CIN = U74900DL2009PTC194144

Company & Directors' Information:- S V HEALTH CARE PRIVATE LIMITED [Active] CIN = U85110DL2006PTC145004

Company & Directors' Information:- I PHARMA PRIVATE LIMITED [Strike Off] CIN = U24232KA2012PTC066464

Company & Directors' Information:- C & G PHARMA PRIVATE LIMITED [Strike Off] CIN = U24232KL2007PTC020840

Company & Directors' Information:- N & N HEALTH CARE PRIVATE LIMITED [Active] CIN = U85110OR2021PTC036397

Company & Directors' Information:- S D H PHARMA PRIVATE LIMITED [Active] CIN = U24100AP2021PTC118446

Company & Directors' Information:- S K PHARMA PVT LTD [Strike Off] CIN = U24200TG1988PTC008219

Company & Directors' Information:- I B PHARMA PRIVATE LIMITED [Active] CIN = U51397DL2007PTC166799

Company & Directors' Information:- PHARMA HEALTH CARE (INDIA) PRIVATE LIMITED [Active] CIN = U24230MH1999PTC121742

Company & Directors' Information:- G B PHARMA LIMITED [Under Process of Striking Off] CIN = U24231TN2004PLC053082

Company & Directors' Information:- G R PHARMA PRIVATE LIMITED [Active] CIN = U85300MH2014PTC251911

Company & Directors' Information:- S B PHARMA PVT LTD [Strike Off] CIN = U74899DL1984PTC018041

Company & Directors' Information:- M S G PHARMA INDIA PRIVATE LIMITED [Active] CIN = U51109DL1998PTC093237

Company & Directors' Information:- P S A PHARMA PRIVATE LIMITED [Active] CIN = U74899DL1987PTC026593

Company & Directors' Information:- G D H PHARMA PRIVATE LIMITED [Active] CIN = U74899DL2000PTC105701

Company & Directors' Information:- HEALTH CARE PHARMA PRIVATE LIMITED [Strike Off] CIN = U33110BR2013PTC021645

Company & Directors' Information:- G. V. PHARMA (INDIA) PRIVATE LIMITED [Strike Off] CIN = U85100TG2010PTC071776

Company & Directors' Information:- P C INDIA PHARMA PRIVATE LIMITED [Strike Off] CIN = U24230MH2000PTC129963

Company & Directors' Information:- C T I L PHARMA PRIVATE LIMITED [Strike Off] CIN = U24230MH2005PTC157982

Company & Directors' Information:- M P PHARMA PRIVATE LIMITED [Strike Off] CIN = U51397MH2004PTC144622

Company & Directors' Information:- J B M PHARMA PRIVATE LIMITED [Strike Off] CIN = U24231TG2001PTC037890

Company & Directors' Information:- M CARE INDIA PRIVATE LIMITED [Active] CIN = U51311DL2002PTC114030

Company & Directors' Information:- J. S. HEALTH CARE PRIVATE LIMITED [Strike Off] CIN = U51397HR2008PTC037595

Company & Directors' Information:- M AND F CARE PRIVATE LIMITED [Active] CIN = U33309KA2020PTC140201

Company & Directors' Information:- R M PHARMA PVT LTD [Active] CIN = U24230AP1986PTC006128

Company & Directors' Information:- B M R HEALTH CARE PRIVATE LIMITED [Strike Off] CIN = U74999DL2009PTC192000

Company & Directors' Information:- T D HEALTH CARE PRIVATE LIMITED [Active] CIN = U85195WB2009PTC135107

Company & Directors' Information:- D P HEALTH CARE PRIVATE LIMITED [Strike Off] CIN = U24231DL2003PTC120730

Company & Directors' Information:- A S A PHARMA PVT. LTD. [Strike Off] CIN = U24231HR2001PTC034701

Company & Directors' Information:- F PHARMA PRIVATE LIMITED [Strike Off] CIN = U24239DL2003PTC120158

Company & Directors' Information:- M I PHARMA PRIVATE LIMITED [Active] CIN = U24239MH2009PTC190502

Company & Directors' Information:- S V J PHARMA (INDIA) PRIVATE LIMITED [Strike Off] CIN = U24297MH2013PTC245885

Company & Directors' Information:- M G HEALTH CARE PRIVATE LIMITED [Active] CIN = U85195MH2001PTC130460

Company & Directors' Information:- S G A PHARMA PRIVATE LIMITED [Strike Off] CIN = U51109MH2013PTC242911

Company & Directors' Information:- N V HEALTH CARE PRIVATE LIMITED [Active] CIN = U74999MH2016PTC280079

Company & Directors' Information:- F. D. I. PHARMA PRIVATE LIMITED [Strike Off] CIN = U74120MH2013PTC240347

Company & Directors' Information:- B N L PHARMA PRIVATE LIMITED [Strike Off] CIN = U24239TG2003PTC040355

Company & Directors' Information:- R P M HEALTH CARE PRIVATE LIMITED [Under Process of Striking Off] CIN = U24233UP2007PTC034056

Company & Directors' Information:- B P N PHARMA PRIVATE LIMITED [Strike Off] CIN = U51397UP2003PTC028134

Company & Directors' Information:- S P D PHARMA PRIVATE LIMITED [Active] CIN = U52100UP2015PTC074941

Company & Directors' Information:- D M PHARMA PRIVATE LIMITED [Active] CIN = U33119CH2012PTC033815

Company & Directors' Information:- T S PHARMA PRIVATE LIMITED [Strike Off] CIN = U24100DL2011PTC226063

Company & Directors' Information:- R S V PHARMA PRIVATE LIMITED [Strike Off] CIN = U24232DL2009PTC186739

Company & Directors' Information:- H V HEALTH CARE PRIVATE LIMITED [Strike Off] CIN = U24239DL2003PTC121596

Company & Directors' Information:- S R J PHARMA PRIVATE LIMITED [Strike Off] CIN = U24239DL2004PTC124535

Company & Directors' Information:- R M HEALTH CARE PRIVATE LIMITED [Strike Off] CIN = U74899DL1992PTC050925

Company & Directors' Information:- J B J PHARMA PRIVATE LIMITED [Active] CIN = U74899DL2001PTC109186

Company & Directors' Information:- S & G HEALTH CARE PRIVATE LIMITED [Strike Off] CIN = U51397MP2008PTC020393

Company & Directors' Information:- G S S PHARMA PRIVATE LIMITED [Active] CIN = U51102KA2015PTC082095

Company & Directors' Information:- V-CARE PHARMA PRIVATE LIMITED [Active] CIN = U24139GJ2000PTC038957

Company & Directors' Information:- L T & L PHARMA PRIVATE LIMITED [Active] CIN = U01132GJ2013PTC077595

Company & Directors' Information:- V 4 U PHARMA PRIVATE LIMITED [Strike Off] CIN = U51397KL2012PTC031740

Company & Directors' Information:- J S M PHARMA PRIVATE LIMITED [Active] CIN = U51397KL2014PTC037674

Company & Directors' Information:- R AND G HEALTH CARE PRIVATE LIMITED [Active] CIN = U85199KL2003PTC016352

Company & Directors' Information:- G 1 CARE PHARMA (INDIA) PRIVATE LIMITED [Active] CIN = U33119RJ2020PTC070704

Company & Directors' Information:- P U R V HEALTH CARE PRIVATE LIMITED [Active] CIN = U85100UP2020PTC138218

Company & Directors' Information:- R P PHARMA INDIA PRIVATE LIMITED [Active] CIN = U24290GJ2021PTC121186

Company & Directors' Information:- K PHARMA PVT LTD [Strike Off] CIN = U24239MH2006PTC165126

Company & Directors' Information:- V A HEALTH CARE PRIVATE LIMITED [Strike Off] CIN = U85195DL2006PTC153744

    CS (COMM.) 834/2016

    Decided On, 07 September 2018

    At, High Court of Delhi

    By, THE HONORABLE JUSTICE: PRATHIBA M. SINGH

    For Petitioner: Hemant Daswani, Ishanki Gupta and Aviral Shukla, Advocates



Judgment Text

1. The present suit for infringement of registered trademark, passing of copyright, rendition of accounts has been filed by the Plaintiff - Mankind Pharma Ltd. against two Defendants i.e. Ultrakind Health Care - Defendant No. 1 and Atlanta Remedies - Defendant No. 2.

2. The case of the Plaintiff is that it owns the trademark 'MANKIND' as also the 'M' logo, which is written in a distinctive form. The Plaintiff also claims that the trademark 'MANKIND' is registered in its name. The Plaintiff further claims that it has a series of marks with the trademark 'MANKIND' and the suffix 'KIND'. Ld. Counsel for the Plaintiff, thus, submits that the Plaintiff's right extends over the trademark 'MANKIND' and the family of marks which bear the suffix ending with 'KIND'. The details of the registrations of the mark 'MANKIND' and the other family of marks with the suffix 'KIND' as also the domain names are set out in paragraphs 7 to 10 of the plaint.

3. The grievance of the Plaintiff in the present case is that the Defendants are using the trademark 'ULTRAKIND' and also using the letter 'U' in a manner which is imitative of the Plaintiffs 'M logo. The two logos and the manner of depiction are set out herein below:



4. The Plaintiff states in the plaint that the use of the 'U' logo, the manner of writing 'ULTRAKIND' and also use of 'KIND' as a suffix is violative of its rights and goodwill and also dilutes its reputation. Accordingly, the Plaintiff is seeking an injunction against the use of trade name 'Ultrakind Health Care', deceptively similar 'U ' logo, the use of any mark with the suffix 'KIND' as also in the get up of the logo, which may be perceived to be an imitation of the Plaintiffs marks, logos and packaging.

5. The suit was listed on 8th July, 2014 on which date this Court had granted an ad interim injunction in the following terms.

"...........

11. Accordingly, the defendants, their dealers, agents, associates, directors, partners, employees, servants, assigns are restrained from trading, selling, advertising, distributing and dealing in any manner under the trade name ULTRAKIND HEALTH CARE and from using the trade mark MECOKIND or any other mark with the word element 'KIND', which are deceptively and phonetically similar to the plaintiffs well-known registered trade name MANKIND and trademark METROKIND. The defendants are further restrained from infringing, passing off or causing to pass off goods under an artwork, get up, label and symbol etc., which is deceptively similar to the plaintiffs corporate ID in relation to marketing of medicinal and pharmaceutical goods in any manner whatsoever, till the next date of hearing.

....... ....... ........ ......"

6. Local Commissioners were also appointed to visit the premises of the Defendants and prepare an inventory of the products containing the infringing marks and labels. Subsequently, an application was moved by the Plaintiff submitting that the exact address of Defendant No. 1 was not available and that the commission may only be executed at Defendant No. 2's premises. Accordingly, the local commission was duly executed only at the premises of Defendant No. 2. The reports of the Local Commissioners have also been filed on record. The said reports show that there were two products, which were found at the premises of Defendant no. 2. The Defendant No. 2 at the time of execution of the commission stated to the Local Commissioner that they were supplying the infringing goods to Ultrakind Health Care only till 8th July, 2014 and that currently they were not supplying any products to the Defendant No. 1. No goods were found bearing mark Ultrakind Health Care. Only two products were found i.e. Lactocal AD-3 and Protocal-DSR, both of which did not bear any of the infringing marks, logos or names. The proprietor of Defendant No. 2 had stated to the Local Commissioner that he had, in the past, manufactured MECOKIND for the Defendant No. 1.

7. The Defendant No. 2 has filed its written statement thereafter and taken the stand that it only manufactured the products for Defendant No. 1 upon orders received from Defendant No. 1 Paragraphs 2 & 5 of the written statement are set out below:

" .........

2. That Defendant no. 2 was engaged by Defendant no. 1 to manufacture medicinal and pharmaceutical preparations and the label and packaging was owned and supplied by the Defendant no. 1. Defendant no. 2 was engaged by Defendant no. 1 who used to market the product manufactured by defendant No. 2. Hence, the Defendant no. 2 is third party manufacturer working on job work basis and has no relation with the trade name or logo of defendant no. 1.

.....................

5. That the Defendants no. 2 is a mere manufacturer and has no role in the marketing, labeling or naming of the products nor does it own mark which is mentioned on the product and therefore, no liability arises against the Defendant No. 2 as alleged in the plaint. .................. "

8. Insofar as Defendant No. 2 is concerned, learned counsel for the Defendant No. 2 submits that Defendant No. 2 has no intention of using any of the trademarks of the Plaintiff or the logo including 'KIND' family of marks. Accepting the said statement, learned counsel for the Plaintiff submits that he does not press any further reliefs against Defendant No. 2.

9. However, insofar Defendant No. 1 is concerned, Defendant No. 1 was served through publication on 4th August, 2015. The said Defendant has not even filed the written statement, accordingly, Defendant No. 1 is now proceeded ex-parte.

10. It is clear from the chronology of events, which have transpired and as also the statement recorded by the Local Commissioner of the proprietor of Defendant No. 2 that Defendant No. 1 was using the impugned 'U' logo, 'ULTRAKIND' name as also other trademarks with the suffix 'KIND'. The packaging showing the use of the said mark by the Defendant No. 1 has been placed on record. A perusal of the 'MECOKIND' plus cartons appearing at page 888 shows the use of the similar 'U' logo, the name Ultrakind Health Care with the arrow as also use of MECOKIND plus. These products were admittedly manufactured by Defendant No. 2 for Defendant No. 1.

11. It is now the settled position that if a Defendant is proceeded ex-parte, the formality of filing ex-parte evidence can be dispensed with. In Everstone Capital Advisors Pvt. Ltd. & Anr. v Akansha Sharma & Ors., [CS(COMM.) 1028/2016, dated 17th July, 2018] this Court has held as under:

"6. There being no defence filed the averments in the Plaint are unrebutted. Under the extant provisions of the CPC, the Plaint is supported by an affidavit and in the absence of any rebuttal or challenge, the Court can take the averments in the Plaint to be correct. Moreover, the documents for eg., registrations of trade marks being public documents, are easily verifiable and the so-called formality of filing affidavit in evidence for marking of exhibits can be dispensed with ................. "

12. The Court can accordingly peruse the documents on record to proceed for pronouncement of judgment.

13. From the perusal of the documents placed on record, there is no doubt that the Plaintiff is the owner of the mark 'MANKIND' and is using the said mark in an extremely distinctive 'M' logo. The Plaintiff has registrations for several trademarks with the suffix 'KIND'. Copies of the said registrations have been placed on record. The Defendant no. 1's 'U logo' bears a startling resemblance with the 'M' logo. Use of marks with the 'KIND' suffix is also violative of the rights of the Plaintiff as the Plaintiff has a large family of marks ending with the suffix 'KIND'. Such use would result in

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passing off and infringement of the Plaintiff's registered trademarks and also result in violation of copyright in the logo. Accordingly, the Defendant No. 1 being ex-parte no defence having been filed on record, judgment is pronounced and a decree of permanent injunction in terms of paras 41(a), (b) & (c) is passed in favour of the Plaintiff and against the Defendant No. 1 only. Since goods have not been recovered from Defendant No. 1, the decree of delivery up is not made out. The Plaintiff does not press the relief of rendition of accounts or profits. Decree sheet be drawn up and the goods seized by the Local Commissioner at the premises of the Defendant No. 2 be released to the Defendant No. 2. Defendant no. 2 shall however be bound by the statement recorded in paragraph 8 above. 14. The suit is decreed accordingly. The suit and all pending I.As. stand disposed of.
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