Petitioner sought permanent injunction and damages against respondents using a deceptively similar trademark. Decided ex-parte. Court found trademark infringement and awarded decree plus compensatory costs.
Suit decreed as prayed with permanent injunction, damages, and compensatory costs of Rs.3,00,000.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
C.S.No.6 of 2016
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 09.08.2019
CORAM
THE HONOURABLE MR.JUSTICE KRISHNAN RAMASAMY
C.S.No.6 of 2016
and
O.A.Nos.20 & 21 of 2016
M/s.Srushti Hospital Pvt.Ltd.,
Represented herein by its Director,
M.S.Preshanthan. ... Plaintiff
Vs.
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5.Srushti Test Tube Baby Centre, 39, HIG, Jaydev Vihar, Near Pearl Heights, Bhubaneshwar – 751 013.
... Defendants
Plaint filed under Order VII Rule 1 C.P.C. read with Order IV Rule 1 of the High Court Original Side Rules praying for:
(a) To grant permanent injunction restraining the defendants, their directors, employees, officers, servants, agents and all others acting for and on their behalf from using the trademark, trade name and trading style featuring the mark “SRUSHTI TEST TUBE BABY CENTRE” or any other name/mark deceptively similar to plaintiff's mark “SRUSHTI HOSPITAL PVT. LTD., MATERNAL AND CHILD HEALTH, FERTILITY & MULTISPECIALITY” in any manner whatsoever, including in relation to its medical services or any other business, including all use as part of its signage, business cards, labels, promotional materials, advertisements, domain name/s, company name/s, URS's, e-mail addresses,
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screen names, user names, website contents (whether or not visible), staff uniforms, transportation vehicles, documents, reports, data, invoices, receipts, stationery, and on any other materials and things on which they are using mark “SRUSHTI HOSPITAL PVT. LTD., MATERNAL AND CHILD HEALTH, FERTILITY & MULTISPECIALITY” or anything similar to plaintiff's mark amounting to infringement of plaintiff's trademark “SRUSHTI HOSPITAL PVT. LTD., MATERNAL AND CHILD HEALTH, FERTILITY & MULTISPECIALITY”, under Certificate No.1115355 in class 44 dated 02.09.2013. (b) To grant permanent injunction restraining the defendants, their directors, employees, officers, servants, agents and all others acting for and on their behalf from using the trademark, trade name and trading style featuring the mark “SRUSHTI TEST TUBE BABY CENTRE” or any other name/mark deceptively similar to plaintiff's mark “SRUSHTI HOSPITAL PVT. LTD MATERIAL AND CHILD HEALTH, FERTILITY & MULTISPECIALITY” in any manner whatsoever, including all use as part of its signage, business cards, labels, promotional materials, advertisements, domain name/s, company name/s, URL's, e-mail addresses, screen names, user names, website contents (whether or not visible), staff uniforms, transportation vehicles, documents, reports, data, invoices, receipts, stationery, and on any other materials and things on which they are using mark “SRUSHTI HOSPITAL PVT. LTD MATERNAL
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AND CHILD HEALTH, FERTILITY & MULTISPECIALITY” or anything similar to plaintiff's mark, “SRUSHTI HOSPITAL PVT. LTD MATERNAL AND CHILD HEALTH, FERTILITY & MULTISPECIALITY”, that amounts to passing off the defendant's business or services as those of plaintiff.
(c) To grant damages for a sum of Rs.10,00,000/in favour of the plaintiff and against the defendants and such other damages as may be quantified by appropriate evaluation of the defendants books of accounts during the course present proceedings;
(d) To grand order of delivery up of any brochures/printed material and/or any material which contributes ultimately to the infringement of plaintiff's trademark;
(e) To direct the defendants for rendition of accounts;
(f) Costs and such other relief as this Hon'ble Court may deem fit, in the circumstances of the case, in the interests of justice and equity.
For Plaintiff : Mr.K.V.Karthik Subramanian
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J U D G M E N T
The suit has been filed by the plaintiff for the relief of permanent injunction and such other reliefs more fully described in the prayer portion of this judgment.
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and she was conferred with Mayan Award 2014. The plaintiff had recently been featured as the best IVF & fertility hospital in India by IVF India Magazine (a magazine for fertility medicine in India.)
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associate the said trademark and the service under it to be emanating from the business of the plaintiff alone.
summons was served on the defendants. In spite of the service of the suit summons, the defendants failed to appear before this Court. Therefore, the defendants were set ex-parte vide order dated 17.07.2019 and the suit was directed to be placed before the learned Additional Master for recording ex-parte evidence. Before
the learned Additional Master, on behalf of the plaintiff one Mr.M.Karthik, was examined as P.W.1 and Exs.P1 to P35 were marked.
exhibits, namely Exs.P1 to P35 have been marked and the details of
the 35 exhibits are as follows:
| S.No. | Exhibits | Description of Documents |
|---|---|---|
| 1 | P1 | The original Board Resolution dated 3rd August 2019. |
| 2 | P2 | The photocopy of certificate of Incorporation issued by Registrar of Companies, Tamilnadu dated 28.07.1996. |
| 3 | P3 | The photocopy of Medical Registration certificate issued by the Tamilnadu Medical Council, Madras dated 17.06.1972. (compared with original, verified and |
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| S.No. Exhibits |
Description of Documents |
|---|---|
| returned) | |
| 4 P4 |
The photocopy of Additional qualification registration certificate issued by the Tamilnadu Medical counsel, Madras dated 17.06.1972. (compared with original, verified and returned) |
| 5 P5 |
The photocopy of Experience certificate issued by department of obstetrics and Gynaecology national university of Singapore dated 14.04.1985. |
| 6 P6 |
The photocopy of merit certificate under post partum programme issued by Government Kasturba Gandhi Hospital for women and children, Madras – 600 005, dated 10.09.1986. |
| 7 P7 |
The photocopy of certificate for paper presentation in 6thNational congress of perinatology, Hyderabad dated 20.02.1987. |
| 8 P8 |
The photocopy of clinical course certificate issued by department of obstetrics and gynecology and MICHAELIS – Midwifery School, University of Kiel, West Germany, dated 03.01.1989. |
| 9 P9 |
The photocopy of experience certificate issued by Baylor College of Medicine dated 12.07.1989. |
| 10 P10 |
The photocopy of certificate of Diploma issued in kiel, dated 02.07.1990. |
| 11 P11 |
The photocopy of the Distinguished physician award issued by Florida chapter association of Tamilnadu Medical Graduates USA dated 04.08.2001. |
| 12 P12 |
The photocopy of certificate issued by American society of reproductive medicine dated 07.05.2011. |
| 13 P13 |
The photocopy of Membership certificate issued by the American Society for Reproductive Medicine dated 07.01.2012. |
| 14 P14 |
The photocopy of certificate issued by Indian college of obstetricians and gynecologists dated 19.01.2013. |
| 15 P15 |
The photocopy of certificate of appointment issued to the plaintiff for honorary professor |
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| S.No. | Exhibits | Description of Documents |
|---|---|---|
| of BGI for consultation, exchange of academic activities and clinical visits dated 12.04.2013. |
||
| 16 | P16 | The photocopy of certificate of appreciation issued by corporation of Chennai, dated 05.12.2013. |
| 17 | P17 | The photocopy of “Magavai Nokki Oru Maruthuva Payanam” book written by Dr.Samundi Sankari in the year 1997. |
| 18 | P18 | The photocopy of plaintiff's Environmental Protection Plan published in newspaper dated 17.09.2005. |
| 19 | P19 | The photocopy of certificate of registration issued by orion Registrar Ind..USA dated 28.10.2009. |
| 20 | P20 | The plaintiff's Article published in Tamil Magazine “Ungal Vanigam” dated July, 2011. |
| 21 | P21 | The photocopy of Top rated IVF Centre's 2015 Special issues 2015. |
| 22 | P22 | The photocopy of Dr.Samundi Sankari's Article published in Tamil Magaine “Valasi Times”. |
| 23 | P23 | The photocopy of Dr.Samundi Sankari's Article published in Tamil Magazine “Malai Malar”. |
| 24 | P24 | The photocopy of certificate of registration of Trademark under Section 23(2), Rule 62(1) dated 02.09.2013. |
| 25 | P25 | The photocopy of notice sent by the plaintiff to defendant dated 19.12.2013. |
| 26 | P26 | The photocopy of notice sent by the plaintiff to defendant dated 12.03.2014. |
| 27 | P27 | The photocopy of Article regarding “Test Tube Baby Centre aborts Femal Foetus” published in the times of India, dated 01.05.2013. |
| 28 | P28 | The printed copy of Article regarding “Police on the Lookout for IVF Specialist” published in “The Hindu” dated 02.05.2013. |
| 29 | P29 | The printout copy of Srushti Baby Centre case published in “The Hindi” dated 07.05.2013. |
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| S.No. Exhibits |
Description of Documents |
|---|---|
| 30 P30 |
The printout copy of Article regarding “Raid on Test Tube Baby Centre in Odisha Capital” published in Odisha Sun Times Bureau dated 20.03.2015. |
| 31 P31 |
The printout copy of Article regarding “Srushti Test Tube Baby Centre Sealed” published in Odisha News dated 20.03.2015. |
| 32 P32 |
The printout copy of Article regarding “IVF centre's patient dies in Hyderabad” published in Decan Chronicle dated 29.08.2015. |
| 33 P33 |
The photocopy of Form TM-1 the Trademark Act, 1999 filed by the 1st defendant represented by M/s.P.Namrata, dated 18.01.2010. |
| 34 P34 |
The printout copy of application No.1932796 for registration of a Trademark in Clause 44 in the Name (s) of M/s.P.Namrata dated 04.11.2013. |
| 35 P35 |
The printout of Srushti Test Tube Baby Centre's Trademark Status dated 18.11.2015. (For the documents Exs.P28, 29, 30, 31, 32, 34 and 35 certificate under Section 65 (B) of Indian Evidence Act |
| produced.) | |
| 7. Heard the |
learned counsel for the plaintiff, gone through |
the averments in the plaint, the proof affidavit and also perused the
Exs.P.1 to P.35.
plaintiff registered its trademark “SRUSHTI HOSPITAL PVT. LTD., MATERNAL AND CHILD HEALTH, FERTILITY & MULTISPECIALITY”, and comparison of the plaintiff's trademark with the defendants'
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trademark “Srushti Test Tube Baby Centre's”, appears that the defendant is trying to provide service as if, the defendants' hospital is one and the same of the plaintiff. The plaintiff's trademark “SRUSHTI HOSPITAL PVT. LTD.,” is similar to the defendants' mark.
So in view of the above, this Court is of the view that the defendants have been infringing the registered trademark of the plaintiff “SRUSHTI HOSPITAL PVT. LTD.,” which clearly amounts to infringement of the trademark, as stated in Section 29 of the Trademarks Act. Therefore, the plaintiff is entitled to the decree as prayed for.
been referred to supra. Reference to Section 35-A 'The Code of Civil Procedure, 1908' ('C.P.C.' for brevity) as amended by 'The Commercial Courts Act, 2015' ('said Act' for brevity) was also made. Section 35-A provides for compensatory costs in respect of false or vexatious defences. In the considered view of this Commercial Division will qualify as a vexatious defence (within the meaning of
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KRISHNAN RAMASAMY,J.
Section 35-A of amended CPC as amended by said Act) as it is a vexatious manner of defending a suit. Be that as it may, in the light of the trajectory and in the light of the defendants' approach to this
suit, this Commercial Division is convinced that it is appropriate to impose compensatory costs of Rs.3,00,000/- (Rupees Three lakhs only) on the defendants.
has incurred substantial expenditure in carrying this suit to its logical end.
costs as set out supra. Consequently, connected original applications are closed.
09.08.2019
AT
C.S.No.6 of 2016 and O.A.Nos.20 & 21 of 2016
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3 issues framed by the court
Whether the use of the mark "SRUSHTI TEST TUBE BABY CENTRE" by the defendants constitutes an infringement of the plaintiff's registered trademark "SRUSHTI HOSPITAL PVT. LTD.".
Whether compensatory costs should be awarded against the defendants for vexatious defence under Section 35-A of the CPC.
Whether the suit should be decreed with costs on the merits of the trademark infringement claim.
Colour shows how this judgement treated each authority
None citedReferred
2 provisions across 2 enactments
M/s.Srushti Hospital Pvt.Ltd.
1.Srushti Test Tube Baby Centre
Dr.Namrata
Dr.Phaneendhra Nath Reddy
KRISHNAN RAMASAMY
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
