Full Text
HIGH COURT OF DELHI
Date of Decision: 22.08.2025
CEDAR PROPERTIES AND TRADING LLP & ORS. .....Plaintiffs
Through: Mr. H.L. Tiku, Senior Advocate
Through: None.
JUDGMENT
1. The present Application has been filed under Order XIIIA Rule 3 & 6(1)(A) of the Code of Civil Procedure, 1908 (“CPC”) read with Rule 27 of the Delhi High Court Intellectual Property Rights Division Rules, 2022 (“IPD Rules”) and Section 151 of the CPC for passing Summary Judgment.
2. The present Suit has been filed seeking relief of permanent injunction restraining the Defendants from infringing the Trade Mark of the Plaintiffs, ‘DROTIN’ and passing off their products as those of the Plaintiffs, along with other ancillary reliefs.
FACTUAL MATRIX
3. Plaintiff No. 1, Cedar Properties & Trading LLP is a Limited Liability Partnership incorporated under the provisions of Limited Liability Partnership Act, 2008. Plaintiff No. 2, Martin and Harris Laboratories Limited, is a Company incorporated under the Companies Act, 1956. Plaintiff No. 3, Martin & Harris Private Limited, is a Company incorporated under the Companies Act, 1913. Plaintiff No. 4, Walter Bushnell Private Limited is a Company incorporated under the Companies Act, 1956.
4. The Plaintiffs are engaged in the business of manufacturing and sale of pharmaceutical preparation under the Trade Mark ‘DROTIN’ (“Subject Trade Mark”).
5. Plaintiff No. 2 has been manufacturing and selling various pharmaceutical products, one of them being under the Subject Trade Mark under license from Plaintiff No. 1. Plaintiff No. 3 is engaged in buying and selling the pharmaceutical products, manufactured by Plaintiff No. 2, including the Subject Trade Mark. Plaintiff No. 4 is engaged in the marketing of the pharmaceutical products including the products under the Subject Trade Mark.
6. In the year 1997, Plaintiff No. 4 coined and adopted the Subject Trade Mark in respect of pharmaceutical products. The details of the Subject Trade Mark has been set out in Paragraph No. 9 of the Plaint and is reproduced hereunder: Trade Mark Registration No. Class Date Goods DROTIN 732349 5 03.02.1997 Medicinal & pharmaceutical preparations
7. Defendant No. l, Stafford Laboratories Private Limited is a Company incorporated under the Companies Act, 1956 and is engaged in the overlapping business of manufacture of medicinal and pharmaceutical preparations (“Impugned Products”) under the Trade Mark ‘DROTISAN’ (“Impugned Trade Mark”). Defendant No. 2, Sanatra Pharma Private Limited / Santara Health Care is a Company incorporated under the Companies Act, 1956 and is engaged in marketing of the medicinal and pharmaceutical preparations prepared by Defendant No. l under the Impugned Trade Mark. Defendant No. 3, Suruchi Medicos is engaged in the sale of the medicinal and pharmaceutical preparations prepared by Defendant No. l and marketed by Defendant No. 2 under the Impugned Trade Mark.
SUMBISSIONS ON BEHALF OF THE PLAINTIFFS
8. The learned Senior Counsel for the Plaintiffs submits that Plaintiff No. 1 acquired all common law and statutory rights, interests and title in the Subject Trade Mark from Plaintiff No. 4 and other Trade Marks by a Deed of Assignment dated 30.03.2017. An appropriate request for the recordal of the name of Plaintiff No. 1 as the subsequent proprietor of the Subject Trade Mark in form TM-P was filed before the Registrar of Trade Marks, and the same has been allowed.
9. The learned Senior Counsel for the Plaintiffs submits that the products of the Plaintiffs were introduced in the market under the following Marks: i. ‘DROTIN’ and ‘DROTIN-DS’ tablets in June 1997 and January 1998, respectively, which are recommended in cases of abdominal pain associated with Irritable Bowel Syndrome (IBS). ii. ‘DROTIN’ injection was launched in November 1998 for acute abdominal pain and is used to hasten dilations, shortens labour and lessens cervical trauma. iii. ‘DROTIN-M’ was introduced in April 2000 and is recommended in cases of spasm associated with inflammation. iv. ‘DROTIN Plus’ was introduced in July 2004 and is recommended in cases of abdominal pain associated with varied aetiology and in fever. v. ‘DROTIN A’ was introduced in October 2009 and is recommended in cases of abdominal pain / colic, pelvic inflammatory disease, post-surgical spasm associated with pain, primary dysmenorrhoeal and abdominal pain associated with post hysterectomy, post lithotripsy and instrumental invasion. vi. ‘DROTIN’ suspension syrup with various variants and flavours was introduced in October 2011 and is recommended for symptomatic relief of abdominal pain due to smooth muscles spasm in children and colitis, gastroenteritis, ascariasis etc.
10. The learned Senior Counsel for the Plaintiffs further submits that the Plaintiffs have acquired enormous goodwill and reputation in relation to its products sold under the Subject Trade Mark. The net sales of the Plaintiffs’ products sold under the Subject Trade Mark for solely the period of April, 2023 to March, 2024 amounts to ₹174,37,94,823/- crores.
11. The learned Senior Counsel for the Plaintiffs submits that the Plaintiffs, have always been vigilant in protecting their Intellectual Property Rights vested in the Subject Trade Mark and have been successful in defending their rights in the Subject Trade Mark over the years.
12. The learned Senior Counsel for the Plaintiffs further submits that on 18.10.2024, the attention of the Plaintiffs’ was invited to the adoption and use of the Impugned Trade Mark in respect of medicinal preparations on the part of the Defendants, when the medicinal preparations under the Impugned Trade Mark were found and purchased by the field staff of the Plaintiffs’ from Defendant No. 3. The Impugned Products bearing the Impugned Trade Mark are being manufactured by Defendant No. 1 as per the declaration made on the Impugned Products. The Plaintiffs through their field staff purchased the Impugned Products with the Impugned Trade Mark from Defendant No. 3 vide Invoice No. 73773 dated 18.10.2024.
13. The learned Senior Counsel for the Plaintiffs submits that the Impugned Trade Mark is identical and / or deceptively similar to the Subject Trade Mark and is being used in respect of identical and similar description of products. The pharmaceutical / medicinal preparations of the Defendants under the Impugned Trade Mark are also meant for the same ailments and treatment for which the medicinal preparations manufactured by the Plaintiffs under the Subject Trade Mark are sold.
14. The learned Senior Counsel for the Plaintiffs submits that the use of the Impugned Trade Mark by the Defendants in relation to the Impugned Products is likely to lead to confusion and / or deception amongst the members of the public, doctors, chemists and the members of the trade on account of their deceptive similarity with the Subject Trade Mark. The deceptive similarity has been outlined hereunder: i. by taking first 5 letters ‘DROTI’ and last letter ‘N’ from the Subject Trade Mark, the Defendants have made their Mark ‘DROTISAN’ which is not only structurally but also visually similar and identical to the Subject Trade Mark; and ii. by adding 2 letters ‘SA’ after ‘DROTI’ and before ‘N’, the Impugned Trade Mark ‘DROTISAN’ has not acquired distinctiveness.
15. The learned Senior Counsel for the Plaintiffs submits that the use of the Impugned Trade Mark by the Defendants, in relation to their medicinal and pharmaceutical preparations is likely to induce the members of the public, pharmacists and doctors to believe that the products of the Defendants originate from the source of the Plaintiffs or has some connection, association or approval of the Plaintiffs, which is a misrepresentation leading to dilution of the Subject Trade Mark and passing off of the Defendant’s products and / or business as and for those of the Plaintiffs’.
16. The learned Senior Counsel for the Plaintiffs further submits that any use of the Impugned Trade Mark by the Defendants, either independently or in a combined manner with other Marks, in relation to the Impugned Products is causing confusion in the minds of the consumers and the public and amounts to infringement of the Subject Trade Mark as well as passing off of the Impugned Products as those of the Plaintiffs’.
17. The learned Senior Counsel for the Plaintiffs while making the above submissions relied upon the following decisions of this Court: i. Coty Germany GmBH v. Xeryus Retail Private Limited and Anr., 2023 SCC OnLine Del 4273; and ii. Cedar Properties and Trading LLP and Others v. Maskon Life Sciences Pvt. Ltd. and Others, 2025 SCC OnLine Del 816 PROCEEDINGS IN THE SUIT
18. On 28.11.2024, while issuing summons in the Suit, this Court granted an ex-parte ad-interim injunction in favour of the Plaintiffs and against the Defendants by way of which the Defendants were restrained from using the Impugned Trade Mark.
19. The learned Joint Registrar, in the order dated 23.01.2025 recorded that the Defendants despite service have neither entered appearance nor did they file their respective Written Statements.
20. The learned Joint Registrar, in the order dated 16.04.2025 recorded that none had appeared on behalf of the Defendants for the past several dates and that all the Defendants’ right to file Written Statement was closed and all the Defendants were proceeded against ex-parte.
21. The learned Joint Registrar, in the order dated 28.05.2025 recorded that vide order dated 16.04.2025, the Plaintiffs shall file the Affidavit of Evidence of its PWs within eight weeks and the next date of hearing is fixed for 02.09.2025.
22. Thereafter, the learned Joint Registrar, in the order dated 12.08.2025 recorded that the matter was listed before the Special Mediation Drive: Mediation ‘For the Nation’ and none had appeared for the Defendants when the matter was called.
23. The learned Senior Counsel for the Plaintiffs submits that this is a fit case where a Summary Judgment in terms of Order XIIIA Rule 3 & 6(1)(A) of the CPC as applicable to commercial disputes of a specified value, read with Rule 27 of the IPD Rules deserves to be passed in favour of the Plaintiffs and against the Defendants.
24. Since all the Defendants have already been proceeded against exparte, fresh notices need not be issued before deciding the present Application under Order XIIIA Rule 3 & 6(1)(A) of the CPC seeking Summary Judgment.
ANALYSIS AND FINDINGS
25. Upon examination of the Trade Marks in question reveals that Defendant Nos. 1 and 2 have reproduced the Plaintiff’s registered Trade Mark ‘DROTIN’. The Impugned Trade Marks are affixed to pharmaceutical products that are identical in nature and therapeutic purpose to those of the Plaintiffs, namely medications for alleviating abdominal pain.
26. The Impugned Trade Mark used by Defendant Nos. 1 and 2 has been formed by taking first 5 letters ‘DROTI’ and last letter ‘N’ from Subject Trade Mark and by adding 2 letters ‘SA’ after ‘DROTI’ and before ‘N’. Defendant Nos. 1 and 2 have made their Mark ‘DROTISAN’ which is not only structurally but also visually similar and identical to the Subject Trade Mark without any justification for adopting the same and such adoption by the Defendants is dishonest and mala fide and has solely been done so as to earn easy profits by encashing upon the Plaintiffs’ goodwill and reputation in their Trade Mark ‘DROTIN’.
27. Having considered the submissions advanced by the learned Senior Counsel for the Plaintiffs, the pleadings and the documents on record, a prima facie case has been made out by the Plaintiffs that the Plaintiffs are the registered proprietor of the Trade Mark ‘DROTIN’ in Class 5.
28. The Plaintiffs have demonstrated substantial goodwill and reputation subsisting in the Subject Trade Mark through evidence of their annual revenue and marketing expenditure, thereby establishing recognition amongst both trade participants and the consuming public.
29. Consequently, the Defendants have exploited the established reputation and goodwill associated with the Subject Trade Mark and have misled uninformed consumers into believing in a commercial connection with the Plaintiffs through their unauthorized and inexplicable adoption of the Subject Trade Mark.
30. This is a case of triple identity where the Mark is identical, the product category is identical and the trade channel as also the consumer base is identical. The Plaintiffs being the prior user, adopter and the registered owner of the Mark ‘DROTIN’ is entitled to permanent protection. The identity in the Mark is so close that the two products are indistinguishable. The Impugned Trade Marks adopted and used by the Defendants is visually, phonetically, structurally and deceptively similar to the Subject Trade Mark ‘DROTIN’. To an unwary consumer of average intelligence and imperfect recollection, the Marks are likely to appear identical, thereby leading to confusion regarding the source or origin of the goods. Accordingly, the Plaintiffs have successfully established a prima facie case of passing off.
31. Moreover, since the Defendants have never entered appearance despite service and having suffered an ex-parte ad-interim injunction, it is evident that Defendant Nos. 1 and 2 possess no substantive grounds upon which to challenge the Plaintiffs’ case.
32. Therefore, no purpose would be served by directing the Plaintiffs to lead ex-parte evidence by filing an Affidavit of Evidence for which the next date of hearing is already fixed for 02.09.2025 before the learned Joint
33. In Su-Kam Power Systems Ltd. v. Kunwer Sachdev, 2019 SCC OnLine Del 10764, this Court has observed that the intent behind incorporating the summary judgment procedure in the Commercial Court Act, 2015 is to ensure disposal of commercial disputes in a time-bound manner. In fact, the applicability of Order XIIIA, CPC to commercial disputes, demonstrates that the trial is no longer the default procedure / norm. Rule 3 of Order XIIIA, CPC, as applicable to commercial disputes, empowers the Court to grant a summary judgment against the defendant where the Court considers that the defendant has no real prospects of successfully defending the claim and there is no other compelling reason why the claim should not be disposed of before recording of oral evidence.
34. In view of the above, Defendant Nos. 1 and 2 have no real prospect of successfully defending the claims in the present Suit. Further, taking into account that the Defendants have not set up any substantial defence, there is no compelling reason for the recording of oral evidence.
35. Therefore, this is a fit case where a Summary Judgment in terms of Order XIIIA Rule 3 & 6(1)(A) of the CPC read with Rule 27 of the IPD Rules and Section 151 of the CPC can be passed in favour of the Plaintiffs and against Defendant Nos. 1 and 2.
36. In view of the same, a decree of permanent injunction is passed in favour of the Plaintiffs and against Defendant Nos. 1 and 2 in terms of Prayer clauses 36 (a) and (b) of the Plaint which are reproduced hereunder: “a) A decree for permanent injunction restraining the Defendants, their servants, agents, assigns in business, partners, associates, affiliates, its dealers, stockists etc. from manufacturing, selling, offering for sale, advertising, directly or indirectly dealing in medicinal and pharmaceutical preparations under the impugned Trade mark “DROTISAN” with or without the Suffix DS or any other mark that may be identical or deceptively similar to the Plaintiffs’ registered Trade mark “DROTIN” as is likely to cause confusion or deception or which is likely to have an association with the Plaintiff’s registered trade mark amounting to infringement of the Plaintiffs' registered trade mark No. 732349; b) A decree for permanent injunction restraining the Defendants, their servants, agents, assigns in business, partners, associates, affiliates, its dealers, stockists etc. from manufacturing, selling, offering for sale, advertising, directly or indirectly dealing in medicinal and pharmaceutical preparations under the impugned Trade mark “DROTISAN” with or without the Suffix DS or any other mark that may be identical or deceptively similar to the Plaintiffs’ registered Trade mark DROTIN, as may be likely to cause confusion or deception in the mind of the public in mistaking the Defendants’ goods/business as and for those of the Plaintiffs amounting to passing off, unfair competition or dilution.”
37. The learned Senior Counsel for the Plaintiffs does not press for the remaining reliefs prayed for in the Suit.
38. The Suit stands disposed of. Let the Decree Sheet be drawn up against Defendant Nos. 1 and 2.
39. The next date of hearing already fixed, i.e., 02.09.2025 before the learned Joint Registrar stands cancelled.
TEJAS KARIA, J AUGUST 22, 2025 ap