Written Statement Shuddi[3531]

IN THE COURT OF SH. GURVINDER PAL SINGH, LD. ADJ, TIS HAZARI COURTS, NEW DELHI SUIT NO. TM 1137 OF 2016 IN THE MATTER OF: HAMDARD NATIONAL FOUNDATION INDIA & ANR.

PLAINTIFFS

VERSUS

SKYTECH PHARMA (P) LTD. & ANR.

DEFENDANTS

WRITTENT STATEMENT ON BEHALF OF THE DEFENDANT NO. 2 Most respectfully sheweth: PRELIMINARY SUBMISSIONS:

1.

That the Defendant no. 2 is a company incorporated on the 1st day of March, 1990,

under the provisions of the Indian Companies Act, 1956, initially under the name of Laborate Pharmaceuticals India Pvt. Ltd., which name was changed on the 3rd day of October, 1997 to M/s. Laborate Pharmaceuticals India Limited, the Defendant no. 2 herein. The registered office of the Defendant no. 2 is situated at E-11, Industrial Area, Panipat-132103, Haryana. Shri Hemant Mehta is the Legal Manager and the Constituted Attorney of the Defendant no. 2 company and vide Resolution of the Board of Directors dated 15.10.2016 is authorized to sign the present written statement.

2.

That the Defendant no. 2 commenced its commercial business of manufacturing

pharmaceutical and medicinal preparations more than two decades ago and owing to maintaining

high

quality

standards

in

manufacturing

its

several

medicinal

and

pharmaceutical formulations, the Defendant no. 2 company has established itself as one of the leading manufacturers of pharmaceutical and medicinal preparations in India in the small scale sector. The Defendant no. 2 has been manufacturing/ marketing a wide range of pharmaceutical preparations for more than two decades. The popularity and the fame of the Defendant no. 2 company can be gauged from the fact that the Defendant no. 2 in the year 2006 itself was ranked as one of the fastest growing pharmaceutical companies in India as per the report published by ORG-IMS in August, 2006. The Defendant no. 2 in the said report, out of the many leading pharmaceutical manufacturing units surveyed, holds a place of pride in the top 50 positions. Further in terms of the Market Feedback Report for the period January to December, 2005 published by the leading trade publication ‘Pharma Buzz’, the Defendant no. 2 has been reaffirmed as one of the fastest growing pharmaceutical company having grown by 117%. Since the said time the Defendant no. 2 has made further strides in

its status and stature and has risen from position to position to emerge as one of the leading and upcoming stars of the pharmaceutical business houses in India and consequently the Defendant no. 2 company has carved a special niche for itself in the field of manufacture, development and marketing of high quality pharmaceutical preparations sold through a large dealer network widely spread across the length and breadth of the country and abroad.

3.

That the Plaintiff’s pioneering industrial initiatives have been well-recognized by the

business and industrial community and the Defendant no. 2 company in its initial stages itself has been awarded with the Second Runner-Up Award in ‘Pharmaceuticals and Chemicals’ category of the Emerging India Awards 2008 jointly conferred by ICICI Bank Ltd, CNBC TV 18 and CRISIL Limited for having business practices which are at par with global standards. The said Emerging India Awards also find their place in the Limca Book of Records and which is no mean achievement by the Plaintiff. 4.

That the Defendant no. 2 employs more than 200 medical sales representatives who

are required to meet more than 20,000 doctors and 30,000 pharmacies, stockists & retailers physically every month for the promotion of the Plaintiff’s various products. The Plaintiff’s said products which number more than 450 are distributed nationally and internationally through scores of distributors, hundreds of stockiest and thousands of retailers.

5.

That the Defendant no. 2 Company at present is manufacturing its various

pharmaceutical products including Ayurvedic preparations from its factory premises situated at Panipat, Haryana and at also Paonta Sahib, Himachal Pradesh. The aforementioned manufacturing units of the Defendant no. 2 are well equipped with state of art machines and sophisticated testing equipments and modern research and development laboratories. The Defendant no. 2 from its aforementioned units is engaged in the manufacturing and marketing of various types of pharmaceutical preparations for itself and on behalf of other leading pharmaceutical companies. The products of the Defendant no. 2 are sold extensively throughout India and abroad and are widely relied upon as cost effective and reliable preparations. The Defendant no. 2 also enjoys the status of a recognized export house from the Government of India and its said manufacturing plants have due approbation from FDAs and Ministries of Health of more than 15 countries and its pharmaceutical products have a wide acceptability across the globe and its products as of now are exported to nearly 30 countries of the world.

6.

That it is submitted the defendant no. 2 had in the year 2010 honestly adopted a

distinctive trade mark ‘SHUDDHI’ for it’s Herbal blood purifier. The said trade mark of the Defendant no. 2 is a coined word and is inherently distinctive. It is submitted that the Defendant no. 2

had filed the application for registration of the trade mark ‘SHUDDHI’

prefixed with the house mark of the defendant no. 2 SHREE AYU-VEDA on 30th june 2014 claiming user of 01.04.2010 since when the defendant no. 2 has been using the said mark. It is further submitted that the two competing marks are completely distinct and are poles apart in comparission to each other and the present suit is liable to be dismissed on this ground alone.

PRELIMINARY OBJECTIONS:

1.

It is respectfully submitted that the plaintiff has wrongly and malafidely invoked the territorial jurisdiction of the Hon’ble Court. It is submitted that none of the defendant no. 2 are residing or doing any business for gain within territory of the Hon’ble Court. No cause of action has taken place within the territory of the Hon’ble Court and plaintiffs have mentioned only bald averments without filing any single supporting document. Without prejudice, in any case, Hon’ble Court is forum non conveniens for the defendant no. 2 and hence is liable to be returned on this sole ground. The present suit has been filed by making bald averments that cause of action has arisen in Delhi. Further no document of any manner whatsoever has been filed with the plaint showing the cause of action taking place within the districts of Delhi over which the present Court has the jurisdiction. It is submitted that not all the districts of Delhi fall within the jurisdiction of this Court. Hence the present plaint is liable to be returned.

2.

That the plaintiffs have no cause of action against the defendant no. 2. The impugned mark SHUDDHI and packaging of the defendant no. 2 are totally different from the alleged mark SAFI and its alleged packaging. The green colour packaging is being used by the defendant no. 2 as per the honest business practices as the same refers to herbs as the present syrup is a herbal blood purifier. The house mark SHREE AYU-VEDA of the defendant no. 2 also appear on the product thereby distinguishing the same from that of the plaintiffs alleged product. The suit and consequently the interim injunction application are liable to be rejected/dismissed under the provisions of Order 7 Rule 11 of Code of Civil Procedure.

3.

That the present suit is suffering from the defect of delay, latches and acquiescence and hence liable to be dismissed. It is submitted that the plaintiff claims to have become aware in the month of November, 2015 however the present suit has been filed only in the month of September, 2016. Thus the plaintiff is not entitled to any relief.

4.

The suit has not been properly valued for the purpose of court fee and jurisdiction and no proper court fee has been paid.

5.

That the suit is liable to be dismissed at the outset as it has not been signed, verified and filed by the proper and authorized person of the Plaintiff.

6.

That the present suit is also laible to be dissmissed for mis joinder cause of action and parties in as much as answering defendant no. 2 has no connection of whatsoever nature, with the defendant no. 1. It is submitted that the defendant no.1 has no connection with the answering defendant

no. 2 mark SHUDDHI which is been

impugned in the present suit.

REPLY ON MERITS: 1.

That the contents of para under reply are wrong and hence are denied. It is denied that the plaintiff is having its head office at Hamdard Building, 2A/3 Asaf Ali Road, New Delhi-110002, or is part of the alleged HAMDARD GROUP as claimed or otherwise. It is denied that the alleged group is a well known or reputed group as claimed or otherwise. It is denied that the alleged group was established in the year 1906 by any Hakeem Hafiz Abdul Majeed, allegedly a well known Unani practitioner of his time as claimed or otherwise. It is denied that the Plaintiff No.1 is a charitable society allegedly registered under the Societies Act (XXI of 1860) as claimed or otherwise. It is denied that Mr. Javed Akhtar is duly authorised to sign, verify or institute the present suit or to take any step in connection with the present legal proceedings as claimed or otherwise. Power of Attorney dated as filed in the present proceedings is denied and disputed. Rest of the contents of para under reply are wrong and hence are denied. Plaintiffs are put to the strict proof of the averments made in the para under reply.

2.

That the contents of para 2 under reply are wrong and hence are denied. It is denied that Plaintiff No. 2, is allegedly a business trust or is trading as Hamdard Laboratories (India) allegedly having its registered office at Hamdard Marg, New Delhi 110006 as claimed or otherwise. It is denied that Mr. Javed Akhtar is Manager (Legal) of Plaintiff

No. 2 or is competent or authorized to sign or verify the plaint or institute the present suit on behalf of the Plaintiff No. 2 by virtue of the alleged Power of Attorney as claimed or otherwise. The contents of Power of Attorney is filed in the present proceedings are denied and disputed.

It is denied that the Plaintiff No. 1 is the owner of any validly registered trade mark SAFI, or Plaintiff No. 2 is allegedly a licensee of Plaintiff No. 1 as claimed or otherwise. Rest of the contents of para under reply are wrong and hence are denied. Plaintiffs are put to the strict proof of the para under reply.

3.

That the contents of para 3 under reply are wrong and hence are denied. It is denied that the Plaintiffs are a part of the alleged HAMDARD GROUP, allegedly established in the year 1906 by Hakeem Hafiz Abdul Majeed, allegedly a reputed Unani Medicinal practitioner. The alleged history and past of Unani clinic under the name of HAMDARD DAWAKHANA is also wrong and denied. It is denied that the alleged HAMDARD DAWAKHANA allegedly flourished or became synonymous with integrity or quality in the field of any Unani medicine as claimed or otherwise. Rest of the contents of para under reply are wrong and hence are denied. Plaintiffs are put to the strict proof of the averments made in the para under reply.

4.

That the contents of para 4 under reply are wrong and hence are denied. It is denied that the alleged HAMDARD GROUP is allegedly engaged in the business of manufacturing or selling of any kind of Unani or Ayurvedic medicine or holds any registration for any trademark, Copyright or any Patent Protection as claimed or otherwise. Plaintiffs are put to the strict proof of the averments made in the para under reply.

5.

That the contents of para 5 under reply are wrong and hence are denied. It is denied that Plaintiff No. 2 is allegedly using the alleged trade mark/house mark HAMDARD in relation to any product either Unani or Ayurvedic medicine, sharbat or non alcoholic sweetened beverage under any license from Plaintiff No. 1, through alleged Deed of Agreement as claimed or otherwise. It is denied that the there is any alleged Deed of Agreement which is valid or subsisting as claimed or otherwise. It is denied that plaintiff manufactures or markets any product as claimed or otherwise. Rest of the contents of para under reply are wrong and hence are denied. Plaintiffs are put to the strict proof of the contents of para under reply.

6.

That the contents of para 6 under reply are wrong and hence are denied. It is denied that Plaintiffs are involved in any kind of manufacturing or has set up any laboratory as claimed or otherwise. It is further denied that the alleged laboratories are Unani GMP or ISO 9001 certified as claimed or otherwise. Plaintiffs are put to the strict proof of the averments made in the para under reply.

7.

That the contents of para 7 under reply are wrong and hence are denied. It is denied that there is any Quality Control or Quality Assurance department at the Plaintiff Company which allegedly ensure the right quality of raw materials or strictly control the processes with modem technologies in order to manufacture the alleged medicines as claimed or otherwise. It is denied that the company is alleged certified for GMP, HACCP or ISO 9001 quality standard as claimed or otherwise. It is denied that there is any analytical lab allegedly equipped with any modern equipment to specifically check the quality parameters as claimed or otherwise. Plaintiffs are put to the strict proof of the averments made in the para under reply.

8.

That the contents of para 8 under reply are wrong and hence are denied. It is denied that Plaintiffs have any overseas business in any part of the world as claimed or otherwise. Plaintiffs are put to the strict proof of the para under reply.

9.

That the contents of para 9 under reply are wrong and hence are denied. It is denied that the Plaintiff is allegedly registered with US FDA or is allegedly an active member of Department of Ayurveda, Yoga & Naturopathy, Unani, Siddha or Homoeopathy (AYUSH), Govt. of India as claimed or otherwise. Plaintiffs are put to the strict proof of the averments made in the para under reply.

10.

That the contents of para 10 under reply are wrong and hence are denied. It is denied any of alleged products are exported by the plaintiffs as claimed or otherwise. Plaintiffs are put to the strict proof of the averments made in the para under reply.

11.

That the contents of para 11 under reply are wrong and hence are denied. It is denied that the plaintiffs are involved in any kind of research or development activity as claimed or otherwise. It is denied that Plaintiffs had allegedly developed in 1939 any blood purifier with unique combination of herbs or elements called SAFI allegedly for

the blood purification in a natural way as claimed or otherwise. Plaintiffs are put to the strict proof of the averments made in the para under reply.

12.

That the contents of para 12 under reply are wrong and hence are denied. It is denied that alleged SAFI is sold under any validly registered trade mark owned by Plaintiff No. 1 or used by Plaintiff No. 2 under alleged License Agreement as claimed or otherwise. The License Agreement dated 11th August, 1975 is denied and disputed. It is submitted that perusal of the said alleged agreement reveals that the same is for an unlimited term. Thus the same is not a valid license agreement in the eyes of law. A license agreement has to be for a certain period of time and cannot be for an unlimited period as the same is not an assignment deed. Thus the said agreement being bad in law cannot be relied upon. It is denied that the SAFI is a Unani Medicine allegedly serves as natural blood purifier or is popular herbal remedy for skin disease such as acne vulgaris, boils, skin rashes, blemishes, urticaria etc as claimed or otherwise. It is denied that SAFI checks nose bleeding, cures constipation, correct indigestion or improves complexion as claimed or otherwise. Rest of the contents of para under reply are wrong and hence are denied. Plaintiffs are put to the strict proof of the averments made in the para under reply.

13.

That the contents of para 13 under reply are wrong and hence are denied. It is denied that the SAFI is allegedly used as an effective or trusted remedy against rectifying blood impurity, skin eruptions, pimples or boils, heat rashes or itching nose bleedings, chronic or temporary constipation, measles, burning sensation in urination, general lassitude or also as a diuretic and a preventive for conditions arising due to change of season as claimed or otherwise. Plaintiffs are put to the strict proof of the averments made in the para under reply.

14.

That the contents of para 14 under reply are wrong and hence are denied. It is denied that the Plaintiffs allegedly have been conferred with any award or have received any accolade for any alleged research on SAFI as claimed or otherwise. It is denied that the any award-winning papers on SAFI were ever presented by any scientist from Medical colleges, universities, research institutes or clinics from any part of the country as claimed or otherwise. Plaintiffs are put to the strict proof of the averments made in the para under reply.

15.

The contents of para 15 are wrong and denied. The photographs of the alleged products of the plaintiffs are denied and disputed.

16.

That the contents of para 16 under reply are wrong and hence are denied. It is denied that Plaintiffs have ever used the trade mark SAFI since its alleged adoption in the year 1939 as claimed or otherwise. It is denied that the alleged mark SAFI is being allegedly used for the past more than 75 years or the same has been exclusively associated with the Plaintiffs in India or any part of the worlds as claimed or otherwise. Plaintiffs are put to the strict proof of the averments made in the para under reply.

17.

That the contents of para 17 under reply are wrong and hence are denied. It is denied that plaintiffs are holding any kind of right in the trade mark SAFI as claimed or otherwise. It is denied that the alleged mark SAFI is original or honest adoption of plaintiffs or is allegedly being used for the past 75 years as claimed or otherwise. The validity of the mentioned registration with respect to mark SAFI claimed by the plaintiffs are denied and disputed. Without prejudice, even if any such registration exists on the present date, the same must have been obtained by playing fraud with registry and same is liable to be removed. Defendant no. 2 reserve their rights to file cancellation against the same. Rest of the contents of para under reply are wrong and hence are denied. Plaintiffs are put to the strict proof of the averments made in the para under reply.

18.

That the contents of para 18 under reply are wrong and hence are denied. It is denied that Plaintiff No. 1 is the registered proprietor of the alleged trade mark SAFI or the trade mark SAFI is allegedly valid or subsisting on the Register of trade marks as claimed or otherwise. Validity of registrations mentioned in the present para under reply are denied and disputed. Plaintiffs are put to strict proof of the averments made in the para under reply.

19.

That the contents of para 19 under reply are wrong and hence are denied. It is denied that the Plaintiff No. 2 has any right to use the claimed trademarks. It is denied that there is any legal Deed of Agreement by which Plaintiff No. 1 licensed the claimed trademarks to Plaintiff No. 2. It is submitted that perusal of the said alleged agreement reveals that the same is for an unlimited term. Thus the same is not a valid license agreement in the eyes of law. A license agreement has to be for a certain period of time and cannot be for an unlimited period as the same is not an assignment deed. Thus the

said agreement being bad in law cannot be relied upon. It is denied that Plaintiff No. 2 uses the claimed trademarks in any manner. Plaintiffs are put to the strict proof of the averments made in the para under reply.

20.

That the contents of para 20 under reply are wrong and hence are denied. It is denied that plaintiffs are having any right in the trade mark SAFI or are having any right in the trade dress of the alleged product as claimed or otherwise. In any case use of the impugned mark or impugned trade dress by the defendant no. 2, in any manner does not amounts to infringement or passing off or violation of the Plaintiffs any rights in the mark as claimed or otherwise. It is submitted that the answering defendant’s mark Shuddhi is poles apart from the Plaintiff alleged mark Safi and the present suit is laibale to dissmissed on this ground alone.

21.

That the contents of para 21 under reply are wrong and henceare denied. It is denied that the packaging of the alleged SAFI product is allegedly an original artistic work under Section (2) (c) of the Indian Copyright Act, 1957 as claimed or otherwise. The validity of registrations claimed by the plaintiffs are denied and disputed. It is denied that there is any copyright of the plaintiffs in the alleged packaging as claimed or otherwise. In any case the packaging of the answering defendant’s products is totally different from the claimed packaging of the plaintiffs and any use of the impugned packaging is strictly associated with the defendant no. 2 only. Rests of the contents of para under reply are wrong and hence are denied. Plaintiffs are put to the strict proof of the averments made in the para under reply.

22.

That the contents of para 22 under reply are wrong and hence are denied. It is denied that Plaintiffs are having any exclusive right under the statutory provisions of the Copyright Act to make copies of claimed label/packaging/cartons or distribute them to the public, make adaptation of the same etc. as claimed or otherwise. It is further denied that

there

is

any

copyright

of

the

plaintiffs

in

the

artistic

work

of

the

label/packaging/cartons claimed by the Plaintiff as claimed or otherwise. Rests of the contents of para under reply are wrong and hence are denied. Plaintiffs are put to the strict proof of the averments made in the para under reply.

23.

That the contents of para 23 under reply are wrong and hence are denied. It is denied that the alleged Trademark SAFI allegedly emanating from the alleged Hamdard Group is allegedly well- known mark or is protected under provisions of Section 11(6) of the

Trade Marks Act, 1999 as claimed or otherwise. It is denied that none of the ingredients under Section 11(6) or Section 2(z)(g) are applicable to the claimed mark as claimed or otherwise. It is denied that there is any reputation or status of the alleged mark SAFI as claimed or otherwise. It is denied that there is any right of the plaintiffs in the alleged mark SAFI. Rests of the contents of para under reply are wrong and hence are denied. Plaintiffs are put to the strict proof of the averments made in the para under reply.

24.

That the contents of para 24 under reply are wrong and hence are denied. It is denied that the word SAFI as trademark or otherwise have allegedly acquired secondary meaning exclusively or conclusively associated with the Plaintiffs' alleged trade or business activity as claimed or otherwise. Plaintiffs are put to the strict proof of the averments made in the para under reply. It is submitted that every case has to be seen as per its own merits. In any case the answering defendant is not concerned with all the self serving purported claims made by the plaintiff as it’s mark Shuddhi is poles part from the plaintiff alleged mark Safi and there is not even a remote possibilty of any confussion and deception amongst the two competing marks. The present case is totally different on the factual position to the case relied by the plantiffs and hence the referred cannot be relied upon by the plaintiffs.

25.

That the contents of para 25 under reply are wrong and hence are denied. It is denied that plaintiffs have ever used the alleged mark SAFI or the same is associated with any manner to any good allegedly emanating from plaintiffs or held to be distinctive of Plaintiffs alleged products excluding as claimed or otherwise. It is submitted that the impugned mark of the defendant no. 2 is totally different from the alleged trade mark of the plaintiffs and any use of the impugned mark is not bound to be associated with the plaintiffs as claimed or otherwise. Any alleged goodwill or reputation claimed by the plaintiffs is also denied. It is denied that the alleged mark SAFI has allegedly gained the status of being a household word as claimed or otherwise. Further the getup, layout or color combination of cartons, labels as claimed by the plaintiffs are totally different from that of the products of the defendant no. 2. Rests of the contents of para under reply are wrong and hence are denied. Plaintiffs are put to the strict proof of the averments made in the para under reply.

26.

That the contents of para 26 under reply are wrong and hence are denied. It is denied that Plaintiffs' alleged products under alleged mark SAFI has ever been promoted either through print or audio-visual media in any manner in any part of India as claimed or

otherwise. It is denied that Plaintiffs have any website as alleged or otherwise. It is further denied that there is any reputation for the alleged mark of the plaintiffs. It is denied that the alleged mark has ever been advertised or promoted as claimed or otherwise. The figures mentioned in the para under reply are denied and disputed. Plaintiffs are put to the strict proof of the averments made in the para under reply.

27. That the contents of para 27 under reply are wrong and hence are denied. It is denied that the plaintiffs have ever sold any product under the alleged mark SAFI as claimed or otherwise. It is denied that the alleged mark has earned any sale or revenue as claimed or otherwise. It is denied that the alleged mark has any reputation or goodwill as claimed or otherwise. It is denied that the alleged mark is distinctive or recognised or associated with the Plaintiff in any manner as claimed or otherwise. It is denied that plaintiffs have made any revenue for any alleged good or service as claimed or otherwise. The revenues figure mentioned in the para under reply are denied and disputed. Rests of the contents of para under reply are wrong and hence are denied. Plaintiffs are put to the strict proof of the averments made in the para under reply.

28.

That the contents of para 28 under reply are wrong and hence are denied. It is denied that the Plaintiffs' alleged products are allegedly recognized by the purchasing public for their alleged excellence or quality as claimed or otherwise. It is denied that the alleged mark SAFI has ever been used in relation to the alleged goods/ services of the Plaintiff as claimed or otherwise. It is further denied that the alleged mark has earned any goodwill or reputation as in relation to the alleged mark SAFI as claimed or otherwise. It is denied that the alleged mark has allegedly obtained status of WELL KNOWN. Rests of the contents of para under reply are wrong and hence are denied. Plaintiffs are put to the strict proof of the averments made in the para under reply.

29.

That the contents of para 27 under reply are wrong and hence are denied. It is denied that alleged mark of the plaintiffs is allegedly having any Well-Known character in relation to alleged good/ service allegedly associated with any Unani pharmaceutical product as claimed or otherwise. The factors mentioned in the para under reply are denied and disputed. The categorical comments are as under:

(a) It is denied that the alleged mark has any inherent nature or the same has ever been used as claimed or otherwise. It is further denied that the trade dress claimed by the plaintiffs have also ever been used as claimed or otherwise. It is denied that either the alleged

mark or the trade dress is associated with the plaintiffs in any manner as claimed or otherwise; (b) It is denied that any alleged product of the plaintiffs is present in the market or same is allegedly popular as claimed or otherwise. It is denied that the alleged mark or the trade dress has ever been used in any part of the world as claimed or otherwise. Rests of the contents of para under reply are wrong and hence are denied; (c)

It is denied that the alleged product bearing the alleged mark or trade dress has ever been promoted or advertised in any manner as claimed or otherwise. It is denied that the alleged website www.hamdard.in belongs to the plaintiffs as claimed or otherwise. Without prejudice to the above said, the information or contents claimed to be present over the mentioned website are denied and disputed. It is denied that the mentioned website is accessed by any customer in India. Rests of the contents of para under reply are wrong and hence are denied.

(d)

It is denied that the Plaintiffs' alleged goods under the alleged mark SAFI or its trade dress are of any quality or have generated any reputation, goodwill, command or exclusivity in the market as claimed or otherwise;

(e)

It is denied that the Plaintiffs have been allegedly vigilant in seeking judicial recognition or protection of their alleged statutory or proprietary right in alleged trade mark. Without prejudice, even if it is assumed that any registration has been obtained in respect of the alleged mark same must has been obtained by playing fraud with the registry. Rests of the contents of para under reply are wrong and hence are denied. Plaintiffs are put to the strict proof of the averments made in the para under reply.

30.

That the contents of para 30 under reply are wrong and hence are denied except those which are matter of record. It is submitted that plaintiffs are claiming themselves to be engaged in the business of Unani medicines since very long and it is very unlikely that they are unaware about defendant no. 1. The present plaint has been filed with malafide and plaintiffs are making false and frivolous averments. Rests of the contents of para under reply are matter of record. Plaintiffs are put to the strict proof of the averments made in the para under reply.

31.

That the contents of para 31 under reply are wrong and hence re denied except those which are matter of record. It is submitted that plaintiffs are claiming themselves to be engaged in the business of Unani medicines since very long and it is very unlikely that they are unaware about defendant no. 1. The present plaintiff has been filed with

malafide and plaintiffs are making false and frivolous averments. Rests of the contents of para under reply are matter of record. Plaintiffs are put to the strict proof of the averments made in the para under reply.

32.

That the contents of para 32 under reply are wrong and hence are denied. It is denied that the mark SHUDDHI is a translation of the alleged mark SAFI. It is submitted that the plaintiffs are making false and frivolous averments just to mislead the court. It is denied that either the alleged mark of the plaintiff is well known or validly registered as claimed or otherwise. It is submitted that the defendant no. 2 are using its products since 2010 and plaintiffs claiming to be involved in same business since very long must be aware of the use of the impugned mark/ label and also about the impugned product of the defendant no. 2. Hence the present suit is suffering from the defect of delay, latches and acquiescence.

33.

That the contents of para 33 under reply are wrong and hence ae denied. It is denied that the mark SHUDDHI adopted by the Defendant no. 2 is deceptively, phonetically or visually similar to the Plaintiffs alleged mark SAFI or is visually deceptively similar to its alleged trade dress as claimed or otherwise. It is submitted that the use of the trademark SHUDDHI by the Defendant no. 2 on impugned goods and services is honest and bonafide. Defendant no. 2 have earned tremendous goodwill and reputation due to its long and continuous use of the impugned trade mark and trade dress and are exclusively associated with the plaintiffs without any confusion or deception. It is vehemently denied that the defendant no. 2 have copied the alleged mark or trade dress of the plaintiffs as claimed or otherwise. Rests of the contents of para under reply are wrong and hence are denied. Plaintiffs are put to the strict proof of the averments made in the para under reply.

34.

That the contents of para 34 under reply are wrong and hence are denied except those which are matter of record or specifically admitted herein after. It is submitted that “shree ayu-veda” is the house mark of the defendant no. 2 and defendant no. 2 has applied the same along with the name of its different products. Contents of preliminary objections may be referred in reply to this para also. It is submitted that in the pleadings the plaintiffs are mentioning about the application no. 2765277 applied by defendant no. 2 but has very conveniently concealed from the Hon’ble Court about other registrations mentioned in the present chart mentioned in preliminary objections. Defendant’s mark SHUDDHI (device mark) applied under application no 2765277 is being bonafidely used since 2010 and has earned

tremendous goodwill and reputation. Rests of the contents of para under reply are wrong and hence are denied. Plaintiffs are put to the strict proof of the averments made in the para under reply.

35.

That the contents of para 35 under reply are wrong and hence are denied. It is denied that the adoption of the mark SHUDDHI by the Defendant no. 2 is much later than the Plaintiffs' adoption of the word alleged mark SAFI allegedly in the year 1939 in India as claimed or otherwise. In any case the mark SHUDDHI and alleged mark SAFI are totally different and there is no cause of action in favour of the plaintiff against the mark SHUDDHI of defendant no. 2. It is denied that the alleged mark of the plaintiffs has ever been used in India or any part of the world. It is denied that the plaintiffs are involved in any business same/ similar as to the business of the defendant no. 2. It is denied that the there is any goodwill or reputation existing in favour of the plaintiffs regarding the mark SAFI as claimed or otherwise. It is further submitted that the defendant no. 2 has honestly adopted the distinct mark SHUDDHI and is using the same since 2010 without any confusion or interruption has acquired common law rights in the same. Rests of the contents of para under reply are wrong and hence are denied. Plaintiffs are put to the strict proof of the averments made in the para under reply.

36. In reply to the contents of para 36 under reply it is submitted that the answering defendant’s mark is totally different from the alleged mark of the plaintiffs. It is submitted that the impugned trade mark/ label, writing style and also the trade dress of impugned products are totally different from that of the alleged product of the plaintiffs and hence there is no cause of action for the present suit. The bare perusal of the graphics depicted in the para under reply clearly demonstrates the dissimilarity and distinctiveness of the defendant no. 2’ products from that of the alleged products of the plaintiff. The present suit is vexatious and has been malafidely filed by the plaintiffs to unnecessarily harass the defendant no. 2. Under these circumstances the present suit is liable to be dismissed with costs.

37.

That the contents of para 37 under reply are wrong and hence are denied. It is denied that there is any deceptively similarity between the impugned mark/ label and the alleged mark of the plaintiffs. It is submitted that plaintiffs are not even involved in any similar business as that of the defendant no. 2. It is submitted that the defendant no. 2 has honestly adopted the impugned mark which is continuously being used since 2010 without any confusion and deception and is exclusively associated with the

defendant no. 2 and none else. It is denied that there is any goodwill or reputation of the alleged mark of the plaintiffs as claimed or otherwise. It is further denied that the defendant no. 2 have adopted the impugned mark with any intention of allegedly encashing the alleged goodwill of the plaintiffs as claimed or otherwise. It is denied that the alleged mark of plaintiffs is well known as claimed or otherwise. It is further denied that trade dress of the impugned products are similar to the trade dress of the plaintiffs’ alleged product as claimed or otherwise. The alleged factors of similarity averred by the plaintiffs are commented as below: a)

It is denied that the trademark SHUDDHI which is being used by the Defendant no. 2 are deceptively similar to the alleged trademark SAFI or its alleged trade dress of the Plaintiffs as claimed or otherwise;

b)

It is denied that the impugned mark SHUDDHI and its trade dress adopted by the defendant no. 2 conveys the same idea as the Plaintiff's alleged registered trademark SAFI or allegedly is in relation to the alleged products as claimed or otherwise. It is denied that that the alleged mark is well known or validly registered as claimed or otherwise. It is denied that SHUDDHI meant to be SAFI, or the get up, layout or colour combination of the defendant's cartons allegedly are deceptively similar or has been deliberately adopted by the defendant no. 2 or any use of the same amounts to infringement or passing off as claimed or otherwise. It is submitted that the defendant no. 2 products are available in the market since 2010 and are being purchased by customers without any confusion or deception as claimed or otherwise. In fact alleged product of the plaintiffs is not even present in the market and hence there is no chance of any confusion or deception as claimed or otherwise.

c.)

It is denied that the alleged mark SAFI has acquired any secondary be meaning of is allegedly associated with the plaintiffs’ alleged products as claimed or otherwise. It is denied that the impugned mark adopted by the defendant conveys any idea similar to the alleged mark SAFI as claimed or otherwise. It is denied that there is any kind of malafide on part of the defendant no. 2 as claimed or otherwise. It is submitted that the defendant no. 2 has honestly adopted the impugned mark which is being used continuously since 2010 without any confusion or deception as claimed or otherwise. It is denied that there is any similarity between impugned mark, layout, getup or color combination of impugned SHUDDHI cartons and labels as compared to alleged SAFI products as claimed or otherwise. Plaintiffs are put to the strict proof of the averments made in the para under reply.

d.) It is denied that there is any kind of similarity between the two competing marks. It is vehemently denied that defendant no. 2 are trying to pass off as originating from

plaintiffs. Plaintiffs are put to the strict proof of the averments made in the para under reply. e)

In reply to contents of sub para e) wrongly mentioned as sub-para c) it is denied that there is in any loss of image or intangible aura alleged to be present around the alleged mark SAFI or its alleged trade dress by the use of the mark/ label SHUDDHI. It is submitted that impugned trade mark and also its trade dress are totally different and poles part from each other. Rests of the contents of para under reply are wrong and hence are denied. Plaintiffs are put to the strict proof of the averments made in the para under reply.

f)

In reply to contents of para f) wrongly mentioned as para d) It is submitted that the sale of blood purifier tonics under SHUDDHI by the defendant no. 2 is not injurious to public health and the product of the defendant no. 2 are high quality products. It is pertinent to mention that the products of the defendant no. 2 are being used in the market since 2010 and the demand and consumption of the same are increasing every year. Plaintiffs are put to the strict proof of the averments made in the para under reply.

g)

In reply to contents of sub para g) it is submitted that the clients and customers recognize and associate impugned mark/ product exclusively with the defendant no. 2 and none else. Further the impugned mark and trade dress are totally different and distinct from the alleged mark/ trade dress of the plaintiffs. Rests of the contents of para under reply are wrong and hence are denied. Plaintiffs are put to the strict proof of the averments made in the para under reply.

38.

That the contents of para 38 under reply are wrong and hence are denied. It is denied that the alleged SAFI cartons include any salient feature as claimed or otherwise. The comments on the claimed features are as below:

a.

It is denied that the plaintiffs are using colour combination of the parrot green background with horizontal, dark blue strip/white strip or red strip where the alleged trademark SAFI blood purifier allegedly appears in white lettering or there under herbal ingredients are depicted or the expression the herbal remedy for skin diseases as claimed or otherwise. It is also denied that on any part of the alleged carton appears the general description as claimed or otherwise. Without prejudice to the above said it is submitted that the carton, colour combination and trade dress of the defendant no. 2 are totally different from that claimed by the plaintiffs. It is submitted that the way of writing the mark SHUDDHI on the carton is totally different to the writing style of the plaintiffs as claimed by them on them. It is submitted that the device mark of the defendant no. 2 is appearing on the top of the carton which clearly indicates that the

product is belonging to the defendant no. 2 and hence negates any possibility of deception or confusion as claimed or otherwise. It is further submitted that even the device of the herbal ingredient claimed by the plaintiff and mentioned in the plaint is totally different as that of the defendant no. 2. Further the description mentioned on the defendant no. 2’ product is different from the contents mentioned over the alleged product of the plaintiff as represented in the present plaint and the documents filed by the plaintiff in the present proceedings. It is also noteworthy to consider that bare perusal of the documents submitted by the plaintiff along with the plaint it is submitted that the plaintiffs are also using Urdu language on their alleged product which is not there on the product of the defendant no. 2. It is also pertinent to mention here that the mark Shuddhi is written in lower case whereas the alleged mark is written in upper case as represented in the plaint and also the documents relied by the plaintiffs. Even if products of the plaintiffs are present in the market as claimed by the plaintiff people will easily differentiate between the claimed products of the plaintiff and the defendant no. 2. Plaintiffs are put to the strict proof of the averments made in the para under reply. b.

It is denied that the defendant no. 2’ mark SHUDDHI is translation of the alleged mark SAFI as claimed or otherwise. It is submitted that plaintiff cannot claim monopoly for the use of the green colour as claimed or otherwise. It is submitted that since the product of the defendant no. 2 is manufactured from the herbal products, the use of the green colour is very natural and green generally being used with the herbal products. There are thousands of herbal products present in the market using the green colour for cartons. Further the line “HERBAL BLOOD PURIFIER” is different from the line “Natural Blood Purifier” as represented on the alleged carton mentioned in the plaint. Further the use of the red strip is generic as the product itself is blood purifier. Rests of the contents of para under reply are wrong and hence are denied. Plaintiffs are put to the strict proof of the averments made in the para under reply.

c.

It is denied that the general get up and layout of the impugned product under the mark Shuddhi are unique and distinct from the alleged product of the plaintiffs. There is no infringement of any kind by the use of the impugned product by the defendant no. 2. Plaintiffs are put to the strict proof of the averments made in the para under reply.

39.

That the contents of para 39 under reply are matter of records. However it is submitted that every case has to be seen as per its own merits. No inference should be drawn from the mentioned proceedings in the para under reply.

40.

That the contents of para 40 under reply are wrong and hence are denied. It is denied that any cause of action for the present suit ever arose in favour of the plaintiffs and against the defendant no. 2 as claimed or otherwise. It is submitted that the defendant no. 2 are using the impugned mark and also the trade dress for their products since 2010. The plaintiffs are claiming to be in the business since very long and hence they must been aware of the use of the impugned mark, trade dress by the defendant no. 2 much before the filing of the present suit. Hence, without admitting any cause of action, the present suit is hit by delay latches and acquiescence. It is submitted that the present suit is not even maintainable and the plaintiffs are not entitled for any kind of injunction against the defendant no. 2. Rests of the contents of para under reply are wrong and hence are denied. Plaintiffs are put to the strict proof of the averments made in the para under reply.

41.

In reply to para 41 it is submitted that the Hon’ble Court has no territorial jurisdiction to entertain the present suit. The jurisdiction of the Hon’ble Court is invoked under Section 20 of the Code of Civil Procedure. As far as online portals are concerned, plaintiffs are trying to mislead the Hon’ble Court by making vexatious averments. It is submitted that plaintiffs are making bald averments without filing any documentary proof in support. It is denied that defendant no. 2 are involved in sale of impugned products through online portals. It is denied that there is any interactive web portal belonging the defendant no. 2 present. Plaintiff is trying to illegally trying to invoke the jurisdiction of the Hon’ble Court. In any case, the address of defendant as mentioned in the memo of parties is of Rohini which is out side the territorial jurisdiction of the Hon’ble Court. Hence the Hon’ble Court is otherwise forum inconvenience. The present suit is liable to be returned to the plaintiff on this sole ground. Rests of the contents of para under reply are wrong and hence are denied. Plaintiffs are put to the strict proof of the averments made in the para under reply.

42.

The contents of para 42 are wrong and are denied. It is denied that suit has been properly valued for the purpose of court fee and jurisdiction and that no proper court fee has been paid.

43. The prayer clause is denied. The plaintiff is not entitled to any relief. The suit is devoid of any merit as the two competing marks ar poles apart to each other and the present suit merits dismissal and it is most respecfully prayed accordingly that the present suit be dissmissed with costs and with exemplary costs as the suit is vexatious.

Prayed accordingly.

Place: New Delhi Date: December, 2016 DEFENDANT NO. 2 Through

(______________________) Counsel for Defendant no. 2 VERIFICATION: Verified at New Delhi on this ___ day of January 2017 that the contents of preliminary submissions and replies to paras 1 to 39 on merits are true to my knowledge and those of preliminary objections submissions and the reliefs to paras 40 to 43 on merits are true upon information received and believed to be true. Last para is prayer before this Hon’ble Court.

DEFENDANT NO. 2