Delhi High Court
Case BriefsHigh Courts

   

Delhi High Court: In a trade mark infringement case where the ex-parte ad-interim order of injunction was challenged, the Single Judge Bench of Navin Chawla, J. confirmed the order of injunction passed by this Court in favour of Sun Pharmaceutical Industries Ltd., and imposed Rs. 10,00,000 costs on Sun Pharmaceutical Industries Ltd. for concealing material facts from this Court.

Background

Plaintiff’s predecessor-in-interest, ‘Ranbaxy Laboratories Ltd.’ coined and adopted the trade mark ‘FORZEST’ in 2003 and it was registered in Class 5 for ‘pharmaceutical and medicinal preparations for human and veterinary use’. Plaintiff was recorded as the subsequent proprietor of the said trade mark with the Trade Mark Registry.

Plaintiff asserted that it was only in 2022 that the plaintiff came across the defendant’s application seeking registration of the mark ‘FOLZEST’ on a ‘proposed to be used’ basis in Class 5 and the same was immediately opposed by the plaintiff. Further, plaintiff’s mark ‘FORZEST’ was cited in the Examination Report against the trade mark application of the defendant, and the defendant in the reply stated that the mark ‘FORZEST’ was phonetically and visually different from the defendant’s mark. Defendants also stated that they were registered proprietor of various ’ZEST’trade marks since 1983.

The trade mark application of the defendant was pending consideration before the Trade Marks Registry. The plaintiff asserted that the adoption of a similar mark to that of the plaintiff by the defendant amounted to infringement of the plaintiff’s trade mark as also passing off and unfair competition. Therefore, based on the assertions of the plaintiff and the documents submitted, this Court passed an ad-interim ex-parte order of injunction on 19-05-2022, restraining the defendant from selling its medicinal preparations under the impugned mark ‘FOLZEST’.

Later, the defendant asserted that the plaintiff obtained an ad-interim ex-parte order of injunction by concealing various material facts from this Court. Defendant stated that the plaintiff was well-aware of not only the registration of the mark ‘ZEST’ in favour of the defendant, but also of the other marks registered and used by the defendant, since, the plaintiff had earlier applied for the registration of the mark ‘EXEZEST’, which was opposed by the defendant way back in the year 2009. Moreover, the plaintiff thereafter applied for registration of its mark ‘TRIOLMEZEST’, which was also opposed by the defendant in 2014 on the ground that the defendant was the registered proprietor of the ‘ZEST’ ‘family of marks’.

Submissions on behalf of the Plaintiff

Counsel for the plaintiff submitted that the marks of the plaintiff and the defendant were deceptively similar, but the use of the medicinal preparations by them were different, as the medicinal preparation of the plaintiff targeted erectile dysfunction in men, while the medicinal preparation of the defendant was a multivitamin for pregnant women for lowering the risk of pre-term births. Thus, any confusion between the two marks could lead to wrongful consumption. It was submitted that there were third parties in the market who use the word ‘ZEST’ and therefore, the defendant could not claim any exclusivity over the word ‘ZEST’.

Submissions on behalf of the Defendant

Counsel for the defendant submitted that the facts were material to be disclosed by the plaintiff as they would have clearly disproved the assertion of the plaintiff that it came to know of the defendant and their use of mark ‘FOLZEST’ only in 2022 and it would have shown that the defendant had various registrations, with the word ‘ZEST’. Therefore, the counsel contended that the ad-interim ex-parte Order of injunction granted by this Court should be set aside on the ground of misrepresentation, concealment, and suppression of facts and of material documents by the plaintiff.

Analysis, Law, and Decision

The Court opined that the facts which plaintiff had concealed were important and material and should have been disclosed upfront in the plaint itself as the disclosure of such facts would certainly have had a bearing on this Court while considering the relief of an ad-interim ex-parte injunction in favour of the plaintiff. The Court held that the plaintiff with mala fide intent sought to mislead this Court by concealing material facts.

The Court observed that prima facie, the mark of the plaintiff ‘FORZEST’, was deceptively similar to the mark of the defendant ‘FOLZEST’, and it was also important to note that the medicine of the plaintiff was for treating erectile dysfunction in men, while the medicinal preparation of the defendant was a multivitamin for pregnant women for lowering the risk of pre-term births. In relation to this, the Court relied on Cadila Health Care Ltd. v. Cadila Pharmaceuticals Ltd., (2001) 5 SCC 73 and Novartis AG v. Crest Pharma Pvt. Ltd., 2009 SCC OnLine Del 4390 and held that “in a medicinal good, the right of not only the private litigants but also public interest has to be kept in mind, and, in fact, be given prominence. Even a remote chance of deception or confusion arising because of similarity in the marks was to be avoided and prevented, as it may lead to disastrous consequences for unwary consumers. Therefore, despite the concealment and misstatement of the plaintiff, the plaintiff shall be entitled to an ad-interim relief if the marks of the medicinal goods are deceptively similar to each other.”

The Court held that the following factors would still be in favour of the plaintiff for the grant of an ad-interim injunction against the defendant:

  1. Plaintiff, through its predecessor-in-interest, had been the registered proprietor of the mark ‘FORZEST’ since the year 2003;

  2. The said mark has been used by the plaintiff/its predecessor-in-interest since the year 2003 and had substantial sales;

  3. Though the defendant had a ‘ZEST’ Family of Marks, it had started the use of the impugned mark ‘FOLZEST’ in June 2021/May 2022 only;

  4. Use of the medicine of the plaintiff and the defendant were different;

  5. Two marks are deceptively similar and any confusion in the same can lead to disastrous consequences.

Thus, the Court held that an ad-interim ex-parte order of injunction stands confirmed during the pendency of the present suit. The matter was listed next for 19-01-2023.

[Sun Pharmaceutical Industries Ltd. v. DWD Pharmaceuticals Ltd., CS (COMM) 328 of 2022, decided on 22-11-2022]


Advocates who appeared in this case:

For the Plaintiff(s): Advocate Sachin Gupta;

Advocate Swati Meena;

Advocate Yashi Agrawal;

For the Defendant(s): Senior Advocate Darpan Wadhwa;

Advocate Karan Bajaj;

Advocate Rupin Bahl;

Advocate Neelakshi.

Case BriefsTribunals/Commissions/Regulatory Bodies

Uttar Pradesh Real Estate Appellate Tribunal, Lucknow: The Division Bench of Justice Dr D.K. Arora (Chairman) and Rajiv Misra (Administrative Member) set aside the decision of the Regulatory Authority and held that the developer did not conceal the details of the project including the status of the same.

The appellant preferred the present appeal against the order passed by the Regulatory Authority whereby the appellant had been directed to refund the amount deposited by the respondents.

Factual Background

Respondents booked 4 BHK Flat in the appellant’s project ‘Godrej Nurture Phase-I’ and paid a sum of Rs 17,51,901 in installments to the appellant. The possession of the unit after completion of the project was to be delivered by 31-3-2024. But the appellant increased the rate of the property in question.

In view of the above, respondents lost faith in the developer, hence filed a complaint about the refund of the deposited amount along with interest. Respondent got the refund with interest at the rate of MCLR+1% per annum, within 45 days.

Aggrieved with the above-stated order, the appellant approached this Tribunal.

Appellant stated that it has not made any change/escalation in the price of the apartment. The lease rent is a pass-through charge which is payable to the competent authority in terms of the title document.

Further, the advance charges were only charged at the time of issuance of the possession letter and for the services/maintenance of the unit and the project the charges were to be paid by all the apartment owners.

The appellant had issued another allotment letter to the respondent on 23.04.2019, indicating the cost of the unit as Rs.1,86,29,264.87p. including taxes mentioning the condition at serial no. 4 to the effect that the allotment of the unit is subject to executing/signing and submitting to the developer/appellant the duplicate copy of the duly signed allotment letter within 10 days of the date thereof and if the developer does not receive the duly signed allotment letter from the allottee/respondent within the timeline mentioned therein, then it shall be deemed that the allottee/respondent has accepted the allotment of the unit on the terms and conditions as specified in the application and the allotment letter.

Respondent was aggrieved by the increase of Rs.3,78,237.92p.

Issued framed

(1) Whether the appellant misrepresented the facts regarding promoter/developer of the project to the allottee?

(2) Whether the appellant committed any illegality in correcting the amount of lease rent payable by the allottee/respondent and taxes from Rs.21,10,077.85 to Rs.21,67,775.16p., advance maintenance charge Rs.1,12,421.03 and lease rent from Rs.5,20,359.10p. to Rs.7,28,478.68p. which resulted in enhancement of the cost of the unit from Rs.18,251,026.95p. to Rs. 18,622,264.87p. vide allotment letter dt. 23.04.2019 (page 57 of the paper book)?

(3) Whether the Regulatory Authority committed any illegality while allowing the claim of the respondent vide impugned order dated 19.02.2020?

Analysis and Decision

The Tribunal on examining the provisions of the application form which was addressed to the appellant signed by the respondents, found that the appellant had disclosed the project and the status of the appellant along with status of Godrej Properties Limited as Development Manager for the project in question by the developer/appellant and the Godrej Properties Limited authorized to develop and operate the Project as per the agreements between the Developer and the Development Manager.

Therefore, nothing was concealed or misrepresented.

As per the application form, it was clearly indicated that the allottees agreed to the cost of the property as mentioned in Schedule III towards purchase of the Unit. However, the Cost of Property shall be exclusive of all charges, fees, taxes, impositions as may be levied by the Competent Authority, such as, lease rent, GST, Cess, property tax, land under construction tax or any future increase thereof or imposition of any fresh incidence of tax levied by Competent Authority; (“Statutory Charges”) in respect of the Unit and Club Membership Charges, recovery or payments towards maintenance and operation of common areas and facilities, stamp duty, registration charges, any future increase thereof and all other costs, charges and expenses incidental thereto in connection with any of the documents to be executed for the sale of the Unit, as per the provisions of applicable laws.

On examining the two allotment letters, it was found that the appellant corrected the amount of taxes, lease rent and mentioned advance maintenance charges. After correction of the same the amount of the unit became Rs.1,86,29,264.87p. from Rs.1,82,51,096.95p. and resulted in the increase of cost of Rs.3,78,167.92p.

Tribunal found no illegality in correcting the amounts in the second allotment letter.

In the opinion of the Tribunal, the appellant had disclosed each and every aspect and details of the project including status of the developer and development manager.

In view of the above discussion, the impugned order was set aside. [Bick Rise Developer (P) Ltd. v. Antaryami Kumar, Appeal No. 472 of 2020, decided on 22-3-2022]


Advocates Before the Tribunal:

Kapil Madan, Counsel for the Appellant

Shiv Prakash Pandey, counsel for the Respondents

Case BriefsHigh Courts

Allahabad High Court: A Division Bench of Pankaj Kumar Jaiswal and Jaspreet Singh, JJ. dismissed the special appeal as it had no merit after having heard the Counsel for the appellants, Prem Shanker Pandey and Q.H. Rizvi, Addl. Chief Standing Counsel for the Respondent.

In the instant case, three people Paramjeet Singh, Jagjeet Singh and Baj Singh took a loan from Union Bank of India, for purchase of a truck. The Bank authorities sanctioned the loan on the security of 2/3rd land given by Paramjeet Singh and Jagjeet Singh. Baj Singh had mortgaged 1/4th share of another piece of land. When they could not repay the loan, a recovery certificate was issued by the Bank and thereafter an auction was held by the Naib Tehsildar. The land was auctioned to Major Singh. The land was again going to be re-auctioned. Therefore, Major Singh challenged the aforesaid re-auction by filing a writ petition which was later dismissed.

The second auction took place and yet again Major Singh became the highest bidder and the land was confirmed in his favour. Thereafter, Paramjeet Singh and Jagjeet Singh filed a Writ Petition thereby an order of the Court was passed. The Court observed that if the writ petitioners deposit 25% of the outstanding amount within one month from the date of the order, their property would not be attached and put to auction and if auctioned, the same will not be confirmed and the same may be kept in abeyance. Further to this, a review was filed by Major Singh which was entertained and the aforesaid order was modified as the material facts that land in question was already sold or auctioned were concealed to get such an order at the first place.

The Court rejected the recall application against the above order filed by the appellants. The sale was confirmed in favour of Major Singh on the basis of an order passed by this Court giving due consideration as to the fact that the appellants had obtained an order by concealing the material facts that land in question was already sold/auctioned.[Paramjeet Singh v. State of U.P., 2019 SCC OnLine All 3145, decided on 29-08-2019]

Case BriefsHigh Courts

Delhi High Court: The Division Bench of Sangita Dhingra Sehgal and Siddharth Mridul, JJ. dismissed a petition against trial court’s order acquitting the accused of offences punishable under Sections 363, 366, 376 and 506 IPC along with Section 5(1) and 6 of the Protection of Children from Sexual Offences Act, 2012.

The accused was alleged to have forcefully made sexual relation with the prosecutrix. An FIR was filed under the above-said sections and the matter was committed to trial. After appreciating the entire evidence, the trial court acquitted the accused.

Ravi Nayak, Additional Public Prosecutor for the State assailed the order arguing that it was based on conjectures and surmises. Per contra, Rajeev Mohan, Advocate for accused supported the impugned order.

After perusing testimony of the prosecutrix in detail along with other evidence, the High Court found that it was full of inconsistencies, concealment, improvements and exaggerations which cast a shadow of doubt on the prosecution case. Furthermore, the case was not at all supported by the medical evidence and FSL report. It was held that the prosecution failed to establish the charges against the accused. Reliance was placed on  Muralidhar v. State of Karnataka, (2014) 5 SCC 730 for the proposition that the Appellate Court may interfere in order of acquittal only when there are compelling reasons to do so. However, the present was not one of such cases. Therefore, the appeal filed by the State was dismissed. [State (NCT of Delhi) v. Manish, 2018 SCC OnLine Del 13291, Order dated 07-12-2018]

Case BriefsForeign Courts

Supreme Court of Pakistan: A Three-Judge bench comprising of Umar Ata Bandial, Faisal Arab and Sajjad Ali Shah, JJ. while hearing an appeal in relation to disqualification of a parliamentarian, ruled that a parliamentarian can be disqualified under Article 62 (1)(f) of the Constitution of Islamic Republic of Pakistan only when he has dishonestly concealed his assets.

Petitioner’s appointment to public office was challenged by the respondent before the Islamabad High Court alleging that while holding office in Pakistan, petitioner was serving a UAE based company as its full-time employee. Respondent’s constitution petition for quo warranto was allowed by the High Court and the petitioner was disqualified as a member of the National Assembly. This order was challenged in the instant petition.

Petitioner submitted that he only rendered advice on the phone to the company and was not required to be physically present in UAE. Also, since the salary received from the company had already been spent by him, therefore its details were not mentioned in his nomination paper.

The Supreme Court observed that the entire purpose behind seeking details of assets and liabilities under election laws is to discourage persons who have wrongfully acquired assets, from contesting elections. Therefore, in a proceeding brought under Article 62 (1)(f) of the Constitution, Court must first call upon the elected member to explain the source from which the alleged undisclosed asset was acquired. Where no satisfactory explanation is forthcoming from him and the undeclared asset is not commensurate with his known sources of income, a presumption of unlawful means having been used in relation to that asset arises. Relying on its decision in Muhammad Hanif Abbasi v. Imran Khan Niazi (PLD 2018 SC 189) the Court held that unless a member is found guilty of dishonest concealment of assets in appropriate judicial proceedings, Article 62(1)(f) cannot be invoked to disqualify him for life.

It was observed that though it was highly inappropriate for a parliamentarian to take a full-time job in a foreign country, but it seemed highly improbable that a person holding such a position would actually be rendering his services as a full-time employee elsewhere. Thus, the petition was allowed holding that since no undeclared proceeds from UAE company existed at the time of filing of petitioner’s nomination papers, therefore no case of concealment of assets was made out. [Khawaja Muhammad Asif v. Muhammad Usman Dar, Civil Petition No.1616 of 2018, decided on 19-10-2018]