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The Procter & Gamble Company v/s Midas Healthcare Limited & Others


Company & Directors' Information:- R G S HEALTHCARE PRIVATE LIMITED [Active] CIN = U85110PB2004PTC047381

Company & Directors' Information:- R G S HEALTHCARE PRIVATE LIMITED [Active] CIN = U85110CH2004PTC027689

Company & Directors' Information:- P. H. HEALTHCARE PRIVATE LIMITED [Active] CIN = U33110MH2010PTC208651

Company & Directors' Information:- B G P HEALTHCARE PRIVATE LIMITED [Active] CIN = U24232GJ2007PTC050417

Company & Directors' Information:- D R HEALTHCARE PRIVATE LIMITED [Active] CIN = U85110GJ2006PTC048008

Company & Directors' Information:- M J HEALTHCARE PRIVATE LIMITED [Active] CIN = U93090PN2008PTC132455

Company & Directors' Information:- S J HEALTHCARE PRIVATE LIMITED [Active] CIN = U85190MH2005PTC153435

Company & Directors' Information:- G J HEALTHCARE PRIVATE LIMITED [Active] CIN = U85110PB1998PTC021049

Company & Directors' Information:- I M HEALTHCARE PRIVATE LIMITED [Active] CIN = U24232CH2010PTC032454

Company & Directors' Information:- K G HEALTHCARE LIMITED [Active] CIN = U85110TZ1995PLC006402

Company & Directors' Information:- MIDAS HEALTHCARE LIMITED [Active] CIN = U24100DL2010PLC203838

Company & Directors' Information:- C S HEALTHCARE PRIVATE LIMITED [Active] CIN = U85110GJ2012PTC070018

Company & Directors' Information:- M M HEALTHCARE LIMITED [Active] CIN = U74899DL1988PLC034339

Company & Directors' Information:- A L B HEALTHCARE PRIVATE LIMITED [Strike Off] CIN = U85110UP2002PTC026786

Company & Directors' Information:- S B M HEALTHCARE (INDIA) PRIVATE LIMITED [Active] CIN = U33112DL2005PTC140703

Company & Directors' Information:- S A HEALTHCARE PRIVATE LIMITED [Strike Off] CIN = U85100OR2014PTC018365

Company & Directors' Information:- AND HEALTHCARE LIMITED [Active] CIN = U51909PB2017PLC046446

Company & Directors' Information:- D. S. HEALTHCARE PRIVATE LIMITED [Active] CIN = U24232WB2007PTC115617

Company & Directors' Information:- B N HEALTHCARE PRIVATE LIMITED [Active] CIN = U15412AS2000PTC006258

Company & Directors' Information:- P AND B HEALTHCARE PRIVATE LIMITED [Strike Off] CIN = U24230GJ2013PTC075056

Company & Directors' Information:- M M D HEALTHCARE LIMITED [Active] CIN = U65921CH1996PLC017595

Company & Directors' Information:- A AND R HEALTHCARE PRIVATE LIMITED [Active] CIN = U24239DL1999PTC102404

Company & Directors' Information:- K. N. HEALTHCARE PRIVATE LIMITED [Active] CIN = U85320RJ2018PTC061003

Company & Directors' Information:- R F B HEALTHCARE PRIVATE LIMITED [Active] CIN = U85190DL2021PTC384643

Company & Directors' Information:- M S HEALTHCARE PRIVATE LIMITED [Active] CIN = U24239MH2001PTC130893

Company & Directors' Information:- G A S HEALTHCARE PRIVATE LIMITED [Active] CIN = U74999BR2018PTC038700

Company & Directors' Information:- L. J. HEALTHCARE PRIVATE LIMITED [Active] CIN = U85100HR2019PTC078493

Company & Directors' Information:- J. R. HEALTHCARE PRIVATE LIMITED [Active] CIN = U85191UP2013PTC054982

Company & Directors' Information:- M A P H HEALTHCARE PRIVATE LIMITED [Under Process of Striking Off] CIN = U85100WB2010PTC144870

Company & Directors' Information:- N. C. HEALTHCARE PRIVATE LIMITED [Active] CIN = U85191DL2007PTC164437

Company & Directors' Information:- N Y HEALTHCARE PRIVATE LIMITED [Active] CIN = U24230GJ2010PTC063348

Company & Directors' Information:- H 4 HEALTHCARE PRIVATE LIMITED [Active] CIN = U15100MH2021PTC353283

Company & Directors' Information:- D. B. HEALTHCARE PRIVATE LIMITED [Active] CIN = U33205MH2014PTC253439

Company & Directors' Information:- K S V HEALTHCARE PRIVATE LIMITED [Active] CIN = U85195HR2011PTC043767

Company & Directors' Information:- N M HEALTHCARE PRIVATE LIMITED [Active] CIN = U85110MH2000PTC125392

Company & Directors' Information:- T K HEALTHCARE (INDIA ) PRIVATE LIMITED [Strike Off] CIN = U85190MH2003PTC139346

Company & Directors' Information:- A R HEALTHCARE PRIVATE LIMITED [Active] CIN = U85110CH2013PTC034820

Company & Directors' Information:- I P HEALTHCARE PRIVATE LIMITED [Active] CIN = U24239DL2003PTC121211

Company & Directors' Information:- A 2 Z HEALTHCARE PRIVATE LIMITED [Active] CIN = U85100DL2010PTC208860

Company & Directors' Information:- K. D. HEALTHCARE INDIA PRIVATE LIMITED [Strike Off] CIN = U85100DL2015PTC281658

Company & Directors' Information:- A P HEALTHCARE PRIVATE LIMITED [Active] CIN = U24230MH1999PTC122520

Company & Directors' Information:- K Y O S HEALTHCARE PRIVATE LIMITED [Strike Off] CIN = U51397HP2010PTC031280

Company & Directors' Information:- Z F HEALTHCARE PVT. LTD. [Active] CIN = U29295MH2006PTC164255

Company & Directors' Information:- K. B. B. K. HEALTHCARE PRIVATE LIMITED [Active] CIN = U85110RJ2013PTC041465

Company & Directors' Information:- T.H.E. HEALTHCARE COMPANY PRIVATE LIMITED [Strike Off] CIN = U33111MH2012PTC229451

Company & Directors' Information:- J S B HEALTHCARE PRIVATE LIMITED [Active] CIN = U74120MH2013PTC248848

Company & Directors' Information:- J S D HEALTHCARE PRIVATE LIMITED [Strike Off] CIN = U74120UP2011PTC046578

Company & Directors' Information:- S V T HEALTHCARE PRIVATE LIMITED [Strike Off] CIN = U85100TZ2009PTC015287

Company & Directors' Information:- MIDAS INDIA PVT LTD [Strike Off] CIN = U35301WB1955PTC022611

Company & Directors' Information:- A N S HEALTHCARE PRIVATE LIMITED [Active] CIN = U85100HP2011PTC031745

Company & Directors' Information:- J M HEALTHCARE PRIVATE LIMITED [Active] CIN = U24230CH2007PTC030943

Company & Directors' Information:- P R HEALTHCARE PRIVATE LIMITED. [Strike Off] CIN = U24231DL2003PTC120123

Company & Directors' Information:- R S M HEALTHCARE PRIVATE LIMITED [Strike Off] CIN = U24232DL2005PTC136255

Company & Directors' Information:- M H HEALTHCARE PRIVATE LIMITED [Active] CIN = U74999DL2016PTC289311

Company & Directors' Information:- N T HEALTHCARE PRIVATE LIMITED [Active] CIN = U85100DL2012PTC241304

Company & Directors' Information:- R A HEALTHCARE PRIVATE LIMITED [Strike Off] CIN = U85190DL2009PTC188221

Company & Directors' Information:- G & G HEALTHCARE PRIVATE LIMITED [Active] CIN = U51397HR2015PTC057293

Company & Directors' Information:- P D HEALTHCARE PRIVATE LIMITED [Active] CIN = U24230GJ2004PTC045131

Company & Directors' Information:- L. V. G. HEALTHCARE PRIVATE LIMITED [Active] CIN = U24233GJ2006PTC047749

Company & Directors' Information:- S H G HEALTHCARE PVT LTD [Strike Off] CIN = U85110WB1989PTC047231

    CS. (COMM). No. 386 of 2017 & I.A. No. 6595 of 2017

    Decided On, 14 May 2018

    At, High Court of Delhi

    By, THE HONOURABLE MR. JUSTICE MANMOHAN

    For the Plaintiff: Peeyoosh Kalra, Amol Dixit, Advocates. For the Defendants: None.



Judgment Text

Oral:

1. Present suit has been filed for permanent/perpetual injunction, rendition of accounts, passing off, delivery up and damages against the defendants. The prayer clause in the present suit is reproduced hereinbelow:-

"(a) Pass and pronounce a decree of permanent/perpetual injunction against infringement of Plaintiff's registered and well-known trade/service mark P&G, by restraining the Defendants, their promoters, assigns, relatives, successors-ininterest, licensees, franchisees, partners, representatives, servants, distributors, employees, agents etc. or anyone associated with them from using the mark P&G/ 'IMAGE' / and/or any mark identical with or similar to the Plaintiff's trade/service mark P&G singularly or in conjunction with any other word or monogram/logo as a trade mark, service mark, house mark, trade name, trading style, corporate name, website, domain name, e-mail address, business card or otherwise in any manner whatsoever so as to infringe the Plaintiff's said registered trade/service mark;

(b) Pass and pronounce a decree of permanent/perpetual injunction restraining the Defendants, their promoters, assigns, relatives, successors-in-interest, licencees, franchisees, partners, representatives, servants, distributors, employees, agents etc. or anyone associated with them from using the marks 'IMAGE' / and/or any mark identical with or similar to the Plaintiff's trade/service marks/name P&G and its trade dress/get up/colour scheme used in respect of in any manner whatsoever so as to pass off or enable others to pass off their business as that of the Plaintiff or in some manner convey a connection with the Plaintiff;

(c) Pass and pronounce a decree directing the Defendant Nos. 3, 4, 5 and 6, their promoters, assigns, relatives, successors-in-interest, licensees, franchisees, partners, representatives, servants, distributors, employees, agents etc. or anyone associated with them to file letters of withdrawal in respect of the trade mark applications under 'IMAGE' and 'IMAGE' under Nos. 2575662 and 2520586 with the Trade Marks Registry and restrain them from applying for or obtaining registrations before any competent body or government authority of the Plaintiff's trade/service mark/name P&G or any deceptive variation/s thereof, singularly or in conjunction with any other word(s) or monogram/logo as a trade/service mark, house mark, trade name, trading style, corporate name, website, domain name, e-mail address or otherwise in any manner whatsoever in relation to their business/products/services;

(d) Pass and pronounce a decree directing the Defendants, their promoters, assigns, relatives, successors-in-interest, licensees, employees, agents etc. or anyone associated with them to deliver-up to the Plaintiff for destruction their entire stationery, letterheads, signage, reprographic material, brochures, literature or any other material for advertising, selling or marketing any goods and/or services bearing the marks P&G/ 'IMAGE' / and/or any mark similar to the Plaintiff's trade/service mark/name P&G;

(e) Pass and pronounce a preliminary decree for rendition of accounts directing the Defendants to produce before the Hon'ble Court or any person nominated/designated/appointed by this Hon'ble Court all accounts in general and invoices and sales figures in particular pertaining to the business under the objectionable marks/names P&G/ 'IMAGE' / 'IMAGE';

(f) Pass and pronounce a final money decree in favour of the Plaintiff and against the Defendants for payment of damages in the sum of Rupees INR 1,01,00,000 or in such higher sum as may be determined/ascertained pursuant to the rendition of accounts;

(g) award costs of the Suit; and

(h) Any other orders as this Hon'ble Court may deem appropriate in the facts and circumstances of the case."

2. Vide order dated 29th May, 2017 this Court granted an ex-parte ad interim injunction in favour of the plaintiff and against the defendants. The relevant portion of the order is reproduced hereinbelow:-

"Consequently, till further orders, the defendants, its promoters, assigns, successors-in-interest, licensees, franchisees, partners, directors, representatives, servants, distributors, employees, agents, carrying and forwarding agents etc. are restrained from using the well-known trade/service mark/trade name P&G / 'IMAGE' / 'IMAGE' or any deceptive variation/s thereof singularly or in conjunction with any other word or monogram/logo or label in any manner whatsoever upon and in relation to their products/services/business whether as a trade mark, service mark, trade name, corporate name, trading style or as website, domain name and e-mail address etc.".

3. Vide order dated 27th November, 2017, the suit was decreed qua the plaintiff and defendant nos. 1, 3 to 6 in accordance with Para 40 (a) to (d) of the plaint and in terms of the settlement application being I.A. 13941/2017. Today, a typographical error in the order dated 27th November, 2017 has been corrected after initialing the same.

4. Vide order dated 5th March, 2018; defendant no.2 was served through publication. Since the defendant no. 2 has not entered appearance, it is proceeded ex parte.

5. Learned counsel for the plaintiff states that in view of the judgment of this Court in Satya Infrastructure Ltd. &Ors. Vs. Satya Infra & Estates Pvt. Ltd., 2013 SCC OnLine Del 508 the present suit be decreed qua the reliefs in paragraph 40(a), (b) and (g) of the plaint. The relevant portion of the said judgment relied upon by learned counsel for the plaintiffs is reproduced hereinbelow:-

'I am of the opinion that no purpose will be served in such cases by directing the plaintiffs to lead ex parte evidence in the form of affidavit by way of examination-in-chief and which invariably is a repetition of the contents of the plaint. The plaint otherwise, as per the amended CPC, besides being verified, is also supported by affidavits of the plaintiffs. I fail to fathom any reason for according any additional sanctity to the affidavit by way of examination-in-chief than to the affidavit in support of the plaint or to any exhibit marks being put on the documents which have been filed by the plaintiffs and are already on record. I have therefore heard the counsel for the plaintiffs on merits qua the relief of injunction.'

6. The relevant facts of the present case as pointed out by the learned counsel of the plaintiffs are as under:-

A) The plaintiff was established in 1837 and it's well known mark P&G was first registered in 1969 in Germany. In India, the plaintiff’s earliest registration of its mark P&G is of 2003. The plaintiff is in the business of manufacturing and trading healthcare, personal care, personal hygiene, household products, cosmetics etc. The plaintiff’s mark P&G and other P&G formative marks are registered under classes 5,3,10,16,21,35,41,42 under the Trade Marks Act, 1999.

B) The plaintiff has one of the largest and strongest portfolios of trusted, quality, leadership brands such as Always, Ambi pur, Areil, Bounty, Charmin, Crest, Dawn, Downy, Fairy, Febreze, Gain, Gillette, Head & Shoulders, Olay, Oral B, Pampers and Pantene. The plaintiff’s acquisition of ‘Gillette’ in 2005 made it the largest consumer goods company in the world.

C) The plaintiff celebrated its 150th anniversary in 1987 and was ranked as the second oldest company amongst the 50 largest Fortune 500 Companies. It is also stated that in Forbes the plaintiff was Ranked 63rd on the list of the ‘World’s Most Reputable Companies’ and 65th on the list of ‘American’s Most Reputable Companies’.

D) The mark P&G is arbitrary and distinctive as well as forms a prominent part of the plaintiff’s corporate name and is its house mark. It is further stated that mark P&G also forms a part of plaintiff’s website ‘www.pg.com’ and its domain names i.e. pgimprovinglife.com, pgeveryday.com, pgpro.com, pginvestor.com etc.

E) The plaintiff' in the financial year 2015-2016, incurred expenditure of approximately Rs. 7000 crores towards advertising and promoting its subsidiaries under the mark P&G. In fact, it is stated that plaintiff incurred approximately 57 crores in advertising and promoting its pharmaceutical business in India. It is also stated that the annual revenue generated by the plaintiff in the financial year 2015-2016 from its subsidiaries under the mark P&G was in excess of Rs.10000 crores.

F) In March, 2017, the plaintiff came across the advertisement of the Defendants nos. 3,4,5 and 6’s application under no.2520586 for registration of the mark 'IMAGE' in class 5 of the Trade Marks Act,1999 in respect of medicinal and pharmaceutical preparations.

G) During the course of investigation into the business activities of defendant No.3, it was revealed that the defendant No.2 manufactures products under the impugned marks which are then marked by defendant Nos.3 to 6. The plaintiff has filed a notice of opposition dated 15th March, 2017 against the registration of the mark 'IMAGE' and the proceedings before the office of the Trade Mark Registry, New Delhi are pending adjudication.

H) The defendants are a

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lso falsely misrepresenting that they are operating the website www.pglifesciences.org which is deceptively similar to plaintiff’s domains pg.com,’pgimprovinglife.com’, ‘pghomesciences.com’. 7. Having heard learned counsel for the plaintiff and having perused the documents placed on record, this Court is of the opinion that the plaintiff has proved the facts stated in the plaint. 8. In the opinion of this Court, the defendant no. 2 has no real prospect of defending the claim as it has neither entered appearance nor filed its written statement or denied the documents of the plaintiff. 9. In view of the above facts, the suit is decreed in favour of the plaintiffs and against defendant no. 2 in terms of prayer clause 40(a), (b) and (g) of the plaint along with the actual costs. The costs shall amongst others include the lawyers’ fees. 10. Registry is directed to prepare a decree sheet accordingly. Consequently, the present suit and applications stand disposed of.
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