Mr. Ram Bhadauria, Adv v. PNEUMO CARE HEALTH PVT LTD ANR

Judgment

1. CS (Comm) 523/2023 was instituted by Pneumo Care Health Pvt Ltd1 against Oxygun Health Pvt Ltd2 and its directors and two other former employees of Pneumo Care, before the learned District Judge (Commercial Court), Rohini3.

2. Pneumo Care alleged, in the suit, that Oxygun had infringed the trademarks HOSPIGRIP and HOSPICUFF, registered in favour of 1 “Pneumo Care” hereinafter 2 “Oxygun” hereinafter 3 “the learned Commercial Court” hereinafter Signature Not Verified RFA(COMM) 271/2025 Digitally Signed By:AJIT KUMAR Signing Date:16.05.2025 17:34:28 Pneumo Care under the Trade Marks Act, 1999 as well as Design No. 325003-0001, also registered in favour of Pneumo Care under the Designs Act, 2000. Additionally, it was alleged that, by using identical marks and an identical design, Oxygun, in collusion with Defendants 2 to 5 in the suit – who are Appellants 2 to 5 in the present appeal – was seeking to pass off its products as the products of Pneumo Care. Predicated on these allegations, Pneumo Care sought injunction against the use, by the defendants-appellants, restraining them from using the marks HOSPIGRIP and HOSPICUFF, or Design No. 325003-001 registered in favour of Pneumo Care, or any other identical or deceptively similar trademark or design. Additionally, the suit prayed for rendition of accounts, delivery-up and damages of ₹ 25 lakhs.

3. The learned Commercial Court has, by judgment dated 5 November 2024, decreed the suit in the following terms: “34. Accordingly, suit of the plaintiff is decreed as under: (i) A decree of permanent injunction is hereby passed in favour of plaintiff(s) and against the defendant(s) and the defendants by themselves as also through their individual representatives, partners/proprietors, directors, agents, distributors, dealers, assigns, stockist etc., and all others acting for and on their behalf are hereby restrained from manufacturing, selling, using, displaying, advertising, importing/exporting or by any other mode or manner dealing in medical devices including medical and surgical apparatus and restraints and other cognate/allied goods and other cognate/allied goods bearing the impugned marks/labels HOSPIGRIP and design of ankle and wrist restrainer or any other trade mark/label and design of ankle and wrist restrainer identical with or deceptively similar to the plaintiffs’ HOSPICUFF and design of ankle and wrist restrainer in instruments, orthopedic articles, trademarks/label HOSPIGRIP Signature Not Verified RFA(COMM) 271/2025 Digitally Signed By:AJIT KUMAR Signing Date:16.05.2025 17:34:28 goods, relation to all medical and surgical apparatus and instruments, orthopedic articles, limbs restraints and other plaintiff's thereby cognate/allied registered trade mark HOSPIGRIP and HOSPICUFF; infringement of registered design bearing No.325003-001 in Class 24-04; and doing any other thing, thereby leading to passing off and unfair competition of their goods as those of the plaintiff; infringing (ii) A decree of damages in the sum of Rs.3,00,000/- (Rupees Three Lakhs Only) is hereby passed in favour of plaintiff and against the defendants jointly and severally; (iii) The plaintiffs are further entitled to delivery up of all the impugned finished and unfinished material of the defendants bearing impugned marks/label HOSPIGRIP and/or design of ankle and wrist restrainer identical with and deceptively similar to it including blocks and labels, display boards, sign boards, trade literature, advertisement material, wrapper, trade dress, packaging etc. for the purpose of destruction/erasure; (iv) Plaintiff is also entitled to cost of the proceedings, which includes expenses incurred by the plaintiff in the suit, including photocopying expenses, travel expenses, fees of learned Local Commissioner, fees of learned counsel quantified as Rs.22,000/- and other miscellaneous expenses.”

4. Aggrieved thereby, the defendants in the suit, i.e. Oxygun, its two directors and Defendants 4 and 5, have filed the present appeal before this Court, praying that the impugned judgment be quashed and set aside and the suit filed by Pneumo Care be dismissed.

5. We have heard Mr. Ram Bhadauria, learned Counsel for the appellants and Ms. Beenashaw N. Soni, learned Counsel for the respondents, at length. The plaint Signature Not Verified RFA(COMM) 271/2025 Digitally Signed By:AJIT KUMAR Signing Date:16.05.2025 17:34:28

6. Pneumo Care, in its plaint before the learned Commercial Court, advanced the following submissions: (i) Pneumo Care was India’s leading research and development company dealing with critical care, respiratory and sleep medicine products. It was engaged in the manufacture, trade and marketing of medical and surgical apparatus and instruments, orthopaedic articles, limb restraints and other cognate and allied goods. The word marks HOSPIGRIP and HOSPICUFF stood registered in favour of Pneumo Care w.e.f.4 29 December 2016 in Class 10 for “medical and surgical apparatus and instruments, orthopaedic articles, limb restraints”. The registration was valid and subsisting. (ii) Under aforesaid marks HOSPIGRIP HOSPICUFF, Pneumo Care had been manufacturing and selling its goods since 2016. By dint of continuous and uninterrupted use, the marks HOSPIGRIP and HOSPICUFF had become distinctive and acted as source identifiers of Pneumo Care. They had garnered immense goodwill and reputation. A pictorial representation of the design of the Pnuemo Care, which stood registered in its favour for ankle and wrist restrainers, may be provided thus: Signature Not Verified 4 With effect from RFA(COMM) 271/2025 Digitally Signed By:AJIT KUMAR Signing Date:16.05.2025 17:34:28 The certificate of registration of Pnuemo Care’s design, under the Designs Act, certified that novelty resided in the surface pattern of the ankle and wrist restrainer. (iii) The ankle and wrist restrainers manufactured and sold by Pnuemo Care under the afore-extracted registered design commanded an enviable market. They were indelibly associated, in the psyche of the consumer public, with Pneumo Care. To vouchsafe its goodwill and reputation, Pneumo Care furnished a tabular statement of its overall sales figures as well as sales figures from the sale of restrainers alone, thus, in the plaint: Financial Year Sale figure in lakhs (Amount in ₹) 2017-2018 2018-2019 2019-2020 2020-2021 2021-2022 Total

1280.45 1377.66 1277.68 1961.42 2619.91 8617.12 Signature Not Verified RFA(COMM) 271/2025 Digitally Signed By:AJIT KUMAR Signing Date:16.05.2025 17:34:28 Financial Year Sale figure (Amount in ₹) 40,59,198/- 50,90,977/- 61,32,715/- 1,52,82,890/- 2020-2021 2021-2022 2022-2023 TOTAL (iv) Appellants 2 and 3 were directors of Oxygun. Appellants 4 and 5 were earlier associated with Pneumo Care. Appellant 4, who was working as General Manager with Pneumo Care, resigned on 7 July 2021 and Appellant 5 Punit Tiwari was terminated vide letter dated 6 April 2022. (v) Oxygun was a company incorporated on 24 November 2020 with the sole aim of diverting the designs of Pneumo Care under the trade mark HOSPIGRIP. In doing so, Oxygun took advantage of the knowledge possessed by Appellants 4 and 5 with respect to Pneumo Care’s products and their process of manufacture. (vi) Shortly prior to the filling of the suit, the appellants had adopted and started using identical and deceptively similar trade marks/labels and designs of the ankle and wrist restrainer, which stood registered in favour of Pneumo Care. A comparison of the rival marks and designs was thus provided in the plaint: COMPARISON OF THE RIVAL MARKS Respondent’s Trade Mark HOSPIGRIP HOSPICUFF Appellant’s Trade Mark HOSPIGRIP HOSPIGRIP Signature Not Verified RFA(COMM) 271/2025 Digitally Signed By:AJIT KUMAR Signing Date:16.05.2025 17:34:28 COMPARISON OF THE DESIGN OF ANKLE AND WRIST RESTRAINER S. No. 1 2 Description Respondent Appellant Hospigrip/Hospicuff Hospigrip Product Name Product Comparison 3 Packaging 4 Product Variants 5 Colour

Printing on White background with black colour Two Printing on white background with black colour Two Wrist & Ankle Front-Black Writ & Ankle Front-Black Back-Black Back-Brown Signature Not Verified RFA(COMM) 271/2025 Digitally Signed By:AJIT KUMAR Signing Date:16.05.2025 17:34:28 6 Locking Double System Locking Double Locking System Black Connector Black Connector 7 Branding Anti Lock Velcro Position: Anti Lock Velcro Position: Middle Lower half of Product Middle Lower half of Product STYLE: STYLE: Fabric tape stitched on either side with product and company logo. Fabric stitched on either side with product company logo. 8 Outer Lining Stitched Stitched (vii) By the aforesaid acts, Oxygun and the other appellants, in collusion, had infringed and committed piracy of Pnuemo Care’s registered trade marks and design and had also sought to pass off their products as the products of Pnuemo Care. (viii) The exact averments in this regard, as contained in the plaint, may be reproduced thus: “26. That to the knowledge of the Plaintiffs, Defendant no. 1 is a company incorporated under Indian Companies Act, and defendant nos. 2 & 3 are the directors of the defendant no. 1 company. The defendant no. 4 and 5 are acting in collusion with defendant nos. 2 & 3 and to the knowledge and belief of the plaintiffs, defendant nos. 2 & 3 are the family members of the defendant nos. 4 & 5. Defendant Nos. 4 & 5 have been associated with the plaintiff no. 1 company. The defendant no. 4. Vikram Singh has been working as General Manager and has resigned from plaintiff no. 1 company on July 7, 2021 and the Signature Not Verified RFA(COMM) 271/2025 Digitally Signed By:AJIT KUMAR Signing Date:16.05.2025 17:34:28 defendant no. 5. Punit Tiwari has been terminated vide letter dated April 6, 2022 pursuant to the breach of terms of appointment dated December 7, 2015.

27. That the defendant no. 1 company has been incorporated on 24.11.2020 with a view to divert the business of plaintiffs under the trademark HOSPIGRIP. The DEFENDANTS herein after means and includes all the defendant nos 1, 2, 3, 4 & 5 unless the context otherwise specially requires to be mentioned. However the plaintiffs do not exactly know the whereabouts of the defendants and their inter se relation and the defendants are called upon to disclose the same upon causing appearance and the plaintiffs seek leave of the Hon’ble Court to amend the plaint upon discloser made by the defendants. That the defendant nos. 4 & 5 have been associated 28. with the plaintiff No. 1 company and has been the mouthpiece of the plaintiff no. 1 company in any workshop, seminar and promotional activities. They have been aware of the nitty-gritty, nuances, know-how and business modes of plaintiff no. 1 company. The public at large and customers of the plaintiff no. 1 company always associate the defendant no. 4 & 5 with the plaintiff. The defendant no.4 & 5 joined hands with defendant no. 1, 2 and 3 in order to encash and ride piggy back to the goodwill and reputation of the plaintiff no. 1 company in relation to the said trademark and design of ankle and wrist restrainer. The defendant nos. 4 & 5 associate themselves with the plaintiff no.1 in order to earn illegally and the impugned and illegal infringing activity of the defendants have caused and has been causing great loss to the plaintiffs.

29. That the defendant has adopted an infringing design in respect of identical similar product i.e. ankle and wrist identical similar with plaintiff’s restrainer which registered design of ankle and wrist restrainer and also using registered trademark “Hospigrip” of the plaintiff. The identical Defendants are marketing and products/goods at various locations and displaying the same products by false representation as their own design and innovation thereby are causing loss and damages to the business, goodwill and distinctiveness of aforesaid well known registered design and trademark of the Plaintiff. trading

30. That defendant no.1 has been incorporated on 24.11.2020 and is involved in manufacturing and trading of various medical devices including medical and surgical apparatus and instruments, orthopedic articles, Signature Not Verified RFA(COMM) 271/2025 Digitally Signed By:AJIT KUMAR Signing Date:16.05.2025 17:34:28 (herein after referred restraints and other cognate/allied goods (hereinafter referred to as the said goods) and adopted the ankle and wrist restrainer (hereinafter referred as impugned design) which is identical / similar with plaintiff's registered design of "ankle and wrist restrainer". The defendant has adopted identical mark and commercially started using HOSPIGRIP impugned trademark) which is identical to the said trademark HOSPIGRIP of the plaintiff. The representation of impugned trademark and design are filed herewith. The plaintiff has also caused search in the Register of the Trade Marks and has not found any trademark application filed by the defendants for the registration of the impugned trademark HOSPIGRIP in relevant class for the impugned goods. to as identical deceptively That the Defendants have very recently adopted and 31. started similar trademarks/labels and design of ankle and wrist restrainer in respect of impugned goods and business as mentioned herein above. The Defendants are not the proprietor of the impugned trademarks/labels and design and have no right to adopt or use the same and are doing so without the leave and license of the Plaintiffs. The Defendants have no proprietary rights for the impugned trademarks/label and design in relation to aforementioned impugned goods and business. That the impugned marks labels used by the 32. defendants is identical with and deceptively similar to the said trademarks/ label of the Plaintiffs. They are identical with and deceptively similar in each and every respect including phonetically, visually, structurally, in its basic idea and in its essential features. A comparison of the Plaintiffs and Defendants' trade mark/label and design are juxtaposed herein below5: ***** On juxtaposition of the rival marks/labels and design of ankle and wrist restrainer, it is explicit and apparent that the Defendants have slavishly copied not only the trademarks but also design of ankle and wrist restrainer of the Plaintiffs. It is apparent that the impugned marks/labels and design used by the Defendants are the colorable imitation of the said trademarks/label and design of the Plaintiffs. The Defendants have deliberately copied and/or substantially Signature Not Verified 5 Already reproduced supra RFA(COMM) 271/2025 Digitally Signed By:AJIT KUMAR Signing Date:16.05.2025 17:34:28 reproduced all the features of trademark and design of the plaintiffs. In all probability the impugned trademarks/labels of the Defendants shall be linked with the Plaintiffs and confusion and deception is bound to occur. The impugned trademarks/label and design shall be taken to be that of the trademarks/labels and design of the Plaintiffs.

33. That it is apparent that the Defendants have made a deliberate attempt and taken undue advantage of the Plaintiffs goodwill and reputation, by adopting impugned marks/label and design only to reap illegal monetary benefits. The Defendants have afforded no plausible explanation for not only adopting of identical marks but also identical designs. The defendant nos 4 & 5 has been well aware of the proprietary rights of the plaintiffs in the trademark/label and ownership of the plaintiffs in the registered design of ankle and wrist restrainer.

34. That the Plaintiffs' business and goods under the said trademarks/labels HOSPIGRIP and HOSPICUF have acquired such goodwill and reputation that it has become distinctive of its products and the Defendants' use of the identical and exactly similar marks/labels HOSPIGRIP for their "impugned products", tends and threatens and will tend to mislead the public to believe that the Defendants business and goods are that of the Plaintiffs. The Plaintiffs said trademarks/labels which are well-known, is being used for the "impugned products” to take undue advantage and benefit of Plaintiffs goodwill and reputation so as to create deception for the public who are likely to buy Defendants' product believing the same as coming from the Plaintiffs' source and is associated with the Plaintiffs in some manner. respect of

35. That the Defendants have no right to adopt or use the impugned marks/labels in any other manner whatsoever including under the law of equity, common law and statutory the said business or allied/cognate business or any business at all being in complete violation of the Plaintiffs rights amounting to inter-alia, infringement and passing off of trade mark and design, dilution, falsification and unfair trade practices. Defendants are doing so without the leave and license of Plaintiffs. The Defendants acts/conduct thus constitutes and cause: A. B. Infringement of trademark and Design: Passing Off: Signature Not Verified RFA(COMM) 271/2025 Digitally Signed By:AJIT KUMAR Signing Date:16.05.2025 17:34:28 C. D. E. Dilution: Unfair Competition Damages INFRINGEMENT OF TRADEMARK AND A. DESIGN It is apparent

36. impugned mark/label HOSPIGRIP used by the Defendants is the colorable imitation of trade mark/label HOSPIGRIP and HOSPICUFF for the identical products of the Plaintiffs. The design of the ankle and wrist restrainer used by the Defendants is a fraudulent and obvious imitation of the registered design of the Plaintiffs. In all probability the impugned Defendants shall be linked with that of the Plaintiffs and confusion and deception is bound to occur. At any rate the impugned counterfeit/infringing products of the Defendants will be taken as the products manufactured and sold by the Plaintiffs. trademark/label and design used by imitation of the Plaintiffs. The

37. That the impugned design of the ankle and wrist restrainer is identical with and exactly similar to the said the said design of trademarks/label by the Defendants are in exactitude and owing to the identical nature of the goods and design, shape and configuration of ankle and wrist restrainer, the likelihood of confusion is much higher, resultantly, the said adoption and use by the Defendants are bound to make the general public, which include the poor patients, believe that the Defendants are somehow connected or affiliated with the Plaintiffs when in fact no such connection or affiliation exists. Thus, by the impugned adoption and user, the Defendants have infringed and also infringing and enabling others to infringe the Plaintiffs proprietary rights in the said trade mark / label HOSPICUFF and HOSPIGRIP. In the instant case, owing to the identical nature of 38. the marks and the goods being identical the likelihood of confusion is much higher, resultantly, the said use by the Defendants are bound to make the general public believe that the Defendants are somehow connected or affiliated with the Plaintiff when in fact no such connection or affiliation exists. Thus, by the impugned adoption and user, the Defendants have infringed and also infringing and enabling others to infringe the Plaintiffs proprietary rights in its said trade mark HOSPIGRIP and/or HOSPICUFF Signature Not Verified RFA(COMM) 271/2025 Digitally Signed By:AJIT KUMAR Signing Date:16.05.2025 17:34:28

39. That the impugned goods and business of the Defendants are also of the same/similar nature as that of the Plaintiff. On a bare comparison of the plaintiff's products which is the subject matter of registered design and the defendant's product, it is apparent that the two are identical in all respects and that the defendant has made every effort to imitate the plaintiff's registered design. The use of the same shape, configuration, and pattern is exactly the same and that cannot be a mere coincident. A side by side comparison of the plaintiff's and 40. defendant's products clearly shows is no difference between any of the essential features of the plaintiff's registered design and that of the defendant's impugned product design. Therefore, it is evident that the design of the impugned product of the defendant constitutes infringement of the statutory rights that vests in the plaintiff by virtue of the registered design No.325003 – 001 dated 26.12.2019. That the features of the design of the plaintiff's 41. ankle and wrist restrainer has come to be exclusively associated with the plaintiffs product and is recognized by the purchasing public and members of trade and emanating from the plaintiffs only. The said distinctive shape, size and configuration is also a key factor in the customers decision to purchase the product B. PASSING OFF trademarks/labels That the Plaintiffs have acquired distinctiveness and 42. goodwill connotes distinctiveness, reputation, quality and goodwill acquired by the Plaintiffs over the years and is understood by the consumers as associated with the Plaintiffs only. Defendants adoption and use of the impugned marks/labels is calculated to derive benefit from the reputation and goodwill enjoyed by the Plaintiffs and their products under its said trademarks/labels thereby perpetrating fraud and deception on the unwary customers by passing off their goods and business as those of the Plaintiffs. The trade mark law is not intended to protect a person who deliberately takes the benefit of somebody else's reputation with respect to its goods and business, especially so when the reputation extends worldwide That the Defendants are not the proprietor of 43. impugned infringing marks/label. The impugned adoption and user of the impugned marks/label is an act of sheer Signature Not Verified RFA(COMM) 271/2025 Digitally Signed By:AJIT KUMAR Signing Date:16.05.2025 17:34:28 dishonesty on Defendants have no justification for such dishonest, mala fide and illegal nefarious act. the Defendants and the part of

44. That the impugned adoption and user by the Defendants are dishonest, tainted, mala fide and fraudulent. Defendants adopted and started using impugned marks/labels in respect of the impugned goods and business out of positive greed and with a view to take advantage and to trade upon the reputation and goodwill of the Plaintiffs and further with a view to calculate confusion and deception in the market and to pass off their impugned goods and business as those of the Plaintiffs and to make easy money at the cost of the Plaintiffs. The Defendants have been fully aware of the Plaintiffs said rights, user and reputation having accrued to in relation to the Plaintiffs said trademarks/label at the time of its impugned adoption and user of its marks/labels as the Plaintiffs are the proprietor of said marks/labels.”

7. Predicated on the aforesaid assertions and allegations, Pneumo Care sought a restraint against Oxygun and other appellants in the terms already set out in para 2 supra.

8. Summons in the suit were served on the appellants on 8 August

2023. They filed their written statements, by way of response to the suit, on 1 February 2024. Inasmuch as the written submissions had been filed beyond 120 days from the date of service of summons in the suit, they could not be taken on record, in view of the judgment of the Supreme Court in SCG Contracts India Pvt Ltd v K S Chamankar Infrastructure Pvt Ltd6, from which the relevant paragraphs may be reproduced thus: “8. The Commercial Courts, Commercial Division and Commercial Appellate Division of High Courts Act, 2015 came their wake certain into force on 23-10-2015 bringing Signature Not Verified 6 (2019) 12 SCC 210 RFA(COMM) 271/2025 Digitally Signed By:AJIT KUMAR Signing Date:16.05.2025 17:34:28 amendments to the Code of Civil Procedure. In Order 5 Rule 1, sub-rule (1), for the second proviso, the following proviso was substituted: “Provided further that where the defendant fails to file the written statement within the said period of thirty days, he shall be allowed to file the written statement on such other day, as may be specified by the court, for reasons to be recorded in writing and on payment of such costs as the court deems fit, but which shall not be later than one hundred twenty days from the date of service of summons and on expiry of one hundred and twenty days from the date of service of summons, the defendant shall forfeit the right to file the written statement and the court shall not allow the written statement to be taken on record.” Equally, in Order 8 Rule 1, a new proviso was substituted as follows: “Provided that where the defendant fails to file the written statement within the said period of thirty days, he shall be allowed to file the written statement on such other day, as may be specified by the court, for reasons to be recorded in writing and on payment of such costs as the court deems fit, but which shall not be later than one hundred and twenty days from the date of service of summons and on expiry of one hundred and twenty days from the date of service of summons, the defendant shall forfeit the right to file the written statement and the court shall not allow the written statement to be taken on record.” This was re-emphasised by re-inserting yet another proviso in Order 8 Rule 10 CPC, which reads as under: “10. Procedure when party fails to present written statement called for by court.—Where any party from whom a written statement is required under Rule 1 or Rule 9 fails to present the same within the time permitted or fixed by the court, as the case may be, the court shall pronounce judgment against him, or make such order in relation to the suit as it thinks fit and on the pronouncement of such judgment a decree shall be drawn up: Provided further that no court shall make an order to extend the time provided under Rule 1 of this Order for filing of the written statement.” A perusal of these provisions would show that ordinarily a written Signature Not Verified RFA(COMM) 271/2025 Digitally Signed By:AJIT KUMAR Signing Date:16.05.2025 17:34:28 statement is to be filed within a period of 30 days. However, grace period of a further 90 days is granted which the Court may employ for reasons to be recorded in writing and payment of such costs as it deems fit to allow such written statement to come on record. What is of great importance is the fact that beyond 120 days from the date of service of summons, the defendant shall forfeit the right to file the written statement and the Court shall not allow the written statement to be taken on record. This is further buttressed by the proviso in Order 8 Rule 10 also adding that the court has no further power to extend the time beyond this period of 120 days. *****

11. We are of the view that the view taken by the Delhi High Court in these judgments is correct in view of the fact that the consequence of forfeiting a right to file the written statement; non- extension of any further time; and the fact that the Court shall not allow the written statement to be taken on record all points to the fact that the earlier law on Order 8 Rule 1 on the filing of written statement under Order 8 Rule 1 has now been set at naught.”

9. As such, the learned Commercial Court, by order dated 16 May 2024, correctly declined to take the written statement of the appellants on record.

10. In the meanwhile, the respondents, as the plaintiffs in the suit, had filed an application under Order VIII Rule 107 of the Code of Civil Procedure 19088, for decreeing the suit in terms of the prayers contained therein, consequent on failure, by the appellants, to file their written statement within a maximum permitted period available under Order VIII Rule 1 of the CPC, as amended by the Commercial Court Act 2015. The learned Commercial Court, therefore, passed the following order on 16 May 2024, declining to take the written 7 10. Procedure when party fails to present written statement called for by Court.—Where any party from whom a written statement is required under Rule 1 or Rule 9 fails to present the same within the time permitted or fixed by the Court, as the case may be, the Court shall pronounce judgment against him, or make such order in relation to the suit as it thinks fit and on the pronouncement of such judgment a decree shall be drawn up 8 “CPC” hereinafter Signature Not Verified RFA(COMM) 271/2025 Digitally Signed By:AJIT KUMAR Signing Date:16.05.2025 17:34:28 statement of the appellants/defendants on record and fixed the matter for arguments on the Order VIII Rule 10 application filed by Pneumo Care: “Present: Sh. Dharmendra Yadav, Ld. Counsel for plaintiff. Sh. Ram Bhadoriya, Ld. Counsel for defendant through VC. As per service report, the defendant was served on 08.08.2023 whereas the WS in the matter was filed on 01.02.2024, much beyond 120 days. Therefore, in view of the law laid down by Hon’ble Supreme Court in SCG Contract India Pvt. Ltd. v K. S. Chamankar Infrastructure Pvt. Ltd. & Ors., this court has no power to allow condonation of delay beyond the period of 120 days. The WS, therefore, cannot be taken on record. List for arguments now on Order 8, Rule 10 CPC on 04.07.2024.”

11. The appellants challenged the aforesaid order before this Court by way of CM(M)-IPD 23/20249. By order dated 28 November 2024, the said CM(M)-IPD 23/2024 was dismissed for non-prosecution.

12. The appellants did not choose to have CM(M)-IPD 23/2024 restored, or to challenge the order dated 28 November 2024. As such, they acquiesced to remaining undefended in the suit.

13. It is in these circumstances that the learned Commercial Court, by judgment dated 5 November 2024, has decreed the suit, in the terms already set out in para 3 supra. The impugned judgment

14. In the impugned judgment, the learned Commercial Court, Signature Not Verified 9 Oxygun Health Pvt Ltd & Ors v Pneumo Care Health Pvt. Ltd & Anr. RFA(COMM) 271/2025 Digitally Signed By:AJIT KUMAR Signing Date:16.05.2025 17:34:28 having noted the facts of the case, has proceeded to decree the suit under Order VIII Rule 10 of the CPC. Apropos the power and authority of the Court to do so, under Order VIII Rule 10 of the CPC, the learned Commercial Court has relied on the judgment of the Supreme Court in Balraj Taneja v Sunil Madan10 and Asma Lateef v Shabbir Ahmad11 and the judgments of this Court in Nirog Pharma Pvt Ltd v Umesh Gupta12, Parsvnath Developers Ltd v Vikram Khosla13, Kleenoil Filtration India Pvt Ltd v Udit Khatri14 and Indian Performing Rights Society Ltd v Gauhati Town Club15.

15. Thereafter, with respect to facts, the learned Commercial Court, after reproducing the comparative table of the products of Pneumo Care and Oxygun, has observed and held as under: “22. The comparison of the products as tabulated above clearly and unerringly suggest that the defendants have dishonestly adopted the impugned trademark/label ‘HOSPIGRIP’, which is visually, structurally and deceptively and confusingly similar to plaintiff’s registered trademarks ‘HOSPIGRIP and HOSPICUFF’ in respect of identical goods which creates the same commercial impression. It is further evident that from the aforesaid action, the defendants have strained every nerve to pass off their products as those of the plaintiff’s products by adopting visually, structurally and phonetically identical trademarks, trading name, packaging, trade dresses, etc. of the plaintiff’s products, which in all probability is likely to confuse and deceive the consumers, thereby causing immense and irreparable harm to the plaintiff’s goodwill and reputation as also pose a risk to the safety, health and well being of the consumers.

23. I further find substance in the submissions of learned counsel for the plaintiff that instant is also a case of dilution and