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 Plaintiffs 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 Plaintiffs various products. The Plaintiffs

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 its 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 Honble Court. It is submitted that none of the defendant

no. 2 are residing or doing any business for gain within territory of the Honble Court.

No cause of action has taken place within the territory of the Honble Court and

plaintiffs have mentioned only bald averments without filing any single supporting

document. Without prejudice, in any case, Honble 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 defendants 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 defendants 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 its 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 Honble

Court about other registrations mentioned in the present chart mentioned in

preliminary objections. Defendants 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

defendants 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 Honble Court has no territorial jurisdiction

to entertain the present suit. The jurisdiction of the Honble 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 Honble 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 Honble 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

Honble Court. Hence the Honble 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 Honble Court.

DEFENDANT NO. 2