BLUE CROSS LABORATORIES PRIVATE LIMITEDversusALTO HEALTHCARE PRIVATE LIMITED AND ANOTHER

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        IN THE HIGH COURT OF JUDICATURE AT BOMBAY
             ORDINARY ORIGINAL CIVIL JURISDICTION
                      IN ITS COMMERCIAL DIVISION
                   COMMERCIAL IP SUIT NO. 520 OF 2016


Blue Cross Laboratories Private Limited                          …Plaintiff
         Versus
Alto Healthcare Private Limited & Anr.                          …Defendants

                                       ——

Mr. Siddhant Gupta a/w. Ms. Prachi Shah, Ms. Apeksha Mehta and Ms.
Rashi Thakur i/b. Mr. Vinod A. Bhagat for the Plaintiff.

None for the Defendants.

                                        ——
                           CORAM                 : ARIF DOCTOR, J.
                           RESERVED ON           : 8th MAY 2026
                           PRONOUNCED ON : 17th JUNE 2026

JUDGMENT:

1. The present Suit is instituted for infringement of the Plaintiff’s registered

    trade marks viz. ‘MEFTAL-SPAS’ and ‘MEFTAL’ as well as the Plaintiff’s

    registered and subsisting copyright in the artwork depicted on its

    ‘MEFTAL-SPAS’ strip and carton combined with a cause of action of

    passing off.

2. It is the case of the Plaintiff that the Defendants are using ‘MEFIAL-SPAS’

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    (“the impugned mark”) and the depicted artwork thereunder (“the

    impugned artistic work”), which is deceptively/substantially similar to the

    Plaintiff’s registered trade marks as well as its artwork, and such are used

    by the Defendants in relation to analgesic and antispasmodic preparations,

    both being medicinal and pharmaceutical preparations.

3. It is noted that this Court had, vide an Order dated 18th November 2015,

    passed an ex-parte order of ad-interim injunction against the Defendants in

    terms of prayer clause ‘(a)’. Thereafter, by an Order dated 30th November

    2015, this Court inter-alia granted the Plaintiff : (i) leave under Clause XIV

    of the Letters Patent, (ii) ad-interim reliefs in terms of prayer clauses ‘(b)’

    and ‘(c)’ of Notice of Motion No. 1071 of 2016. Vide a further Order dated

    19th September 2016, this Court confirmed the ad-interim Orders as

    aforementioned and the Plaintiff’s Notice of Motion was made absolute in

    terms of prayers ‘(a)’, ‘(b)’ and ‘(c)’. The said orders were never challenged

    and thus the same have attained finality.

4. Defendant No. 1 had, on 31st March 2017, filed its Written Statement,

    however, pursuant thereto, Defendant No. 1 has never appeared.



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    Accordingly, the Suit against Defendant No. 1 has proceeded ex-parte.

    Despite service of the Writ of Summons on Defendant No. 2, no Written

    Statement was filed by Defendant No. 2. The Suit was thus transferred to

    the list of undefended Suits against the Defendant No. 2 vide order dated

    15th July 2016.

5. The Plaintiff has filed an affidavit of evidence in lieu of examination-in-

    chief dated 27th March 2026 of Ms. Nivedita Bagwe along with an affidavit

    of documents, a compilation of documents and a certificate under Section

    65-B of the Evidence Act, 1872. The Plaintiff has also filed an affidavit of

    evidence in lieu of examination-in-chief dated 27th March 2026 of Mr.

    Suresh Mahalingam. The affidavits of evidence and the documents filed in

    the compilation of documents have been marked in evidence. Accordingly,

    the Suit was taken up for hearing on 07th May 2026, under the caption For

    Final Hearing.

    Submissions on behalf of the Plaintiff:

6. Mr. Gupta, the learned counsel appearing on behalf of the Plaintiff,

    submitted that the Plaintiff is a company incorporated under the Companies



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    Act, 1956. He submitted that by way of the present Suit, the Plaintiff has

    sought a permanent injunction to restrain the Defendants from infringing

    and from using the mark ‘MEFIAL-SPAS’ (“the impugned mark”) and

    the depicted artwork thereunder (“the impugned artistic work”) and from

    passing off the Defendants’ goods as and for those of the Plaintiff.

7. Mr. Gupta submitted that the Plaintiff is the registered proprietor of the trade

    marks ‘MEFTAL’ and ‘MEFTAL-SPAS’ under registration Nos. 384238

    and 538416, respectively, both in class 05 (“Plaintiff’s marks”), which

    registrations are valid and subsisting to date. He then submitted that the

    Plaintiff’s trade mark ‘MEFTAL’ is a coined and an invented word, first

    conceived, adopted and used since the year 1981 and that in the year 1982

    the Plaintiff had adopted and commenced using a ‘MEFTAL’ variant, being

    ‘MEFTAL-SPAS’, for use in relation to its analgesic and antispasmodic

    preparations, and both the said trade marks have been in continuous use

    since then. He submitted that the trade mark ‘MEFTAL-SPAS’ had carved

    out a niche for itself in the pharmaceutical industry by its distinctive

    products.



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8. Mr. Gupta submitted that the Plaintiff’s ‘MEFTAL-SPAS’ tablets are

    packed and sold in strips and cartons bearing original works of art which

    were designed, developed and created in the years 2004 and 1982,

    respectively. He submitted that the Plaintiff is the registered proprietor of

    the copyright in the original artistic work of ‘MEFTAL-SPAS’ depicted on

    its strip under the provision of the Copyright Act, 1957, vide registration

    No. A-80641/2007 dated 18th September 2007 ("Plaintiff's artistic work”).

9. Mr. Gupta then submitted that Plaintiff’s marks combined with its artistic

    work have been extensively used by the Plaintiff and thus the same have

    become distinctive of the Plaintiff’s products, and thus valuable common

    law rights have accrued in favour of the Plaintiff.

10. Mr. Gupta submitted that in October 2015, the Plaintiff discovered that

    Defendants were using the impugned mark, i.e., 'MEFIAL-SPAS', in respect

    of its analgesic and antispasmodic preparation (“impugned product”),

    from Gorakhpur, Uttar Pradesh. He submitted that the impugned product

    bearing the impugned mark was being marketed by Defendant No. 1 and

    manufactured by Defendant No. 2, and therefore, the Plaintiff effected a



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    purchase of the impugned product bearing the impugned mark from a

    retailer, for which no invoice was issued.

11. Mr. Gupta then pointed out that the Defendants have lifted the whole of the

    Plaintiff’s trade mark, i.e., 'MEFTAL-SPAS', and have merely replaced the

    fourth letter, i.e., 'T', with the letter “I”, to make up the impugned mark

    ‘MEFIAL-SPAS’, which is deceptively similar to the Plaintiff’s trade

    marks. He then submitted that the Defendants have copied the entire artistic

    work appearing on the ‘MEFIAL-SPAS’ carton of the Plaintiff’s which is

    in fact original artistic work registered and owned by the Plaintiff. He

    further submitted that the Defendants have also copied the blue and red

    colour scheme for depicting the impugned products on their label on its

    strips and have also copied the geometric design bordering the said

    impugned mark, and, infact the Defendants have copied the entire

    packaging of the Plaintiff’s product under the ‘MEFTAL-SPAS’ mark. The

    rival marks are reproduced herein below for the purpose of comparison:




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             Plaintiff’s Product                    Defendants’ Product




12. Mr. Gupta submitted that the Defendants’ use of the impugned mark,

    impugned artistic work and copying the Plaintiff’s packaging for their

    products is clearly mala fide and dishonest. He submitted that it is evident

    from the perusal of the rival products that the Defendants were attempting

    to encash on the Plaintiff’s goodwill and reputation, and thus the Defendants

    have clearly infringed the Plaintiff’s trade mark, its original artistic work

    and its packaging, and the Defendants have attempted to pass off their goods

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      as and for those of the Plaintiff and have thereby caused loss and damage to

      the Plaintiff. He thus submitted that the Plaintiff was seeking a permanent

      injunction restraining the Defendants from infringing the Plaintiff’s trade

      mark, copyrights and passing off the impugned products as being that of the

      Plaintiff, in addition to claiming damages of Rs. 1,00,000/-.

13. Mr. Gupta placed reliance upon the decision of the Hon’ble Supreme Court

      in the case of K.R. Chinna Krishna Chettiar v. Shri Ambal & Co.1, to point

      out that deceptive similarity must be assessed by comparing the marks as a

      whole, focusing on their distinctive and essential features, including the

      phonetic resemblance, which may create a real likelihood of confusion even

      without visual similarity. Similarly, he pointed out that this Court has, in the

      case of Hiralal Prabhudas v. Ganesh Trading Co.2, reiterated the well-

      established principles that (i) marks are remembered by overall impressions

      rather than precise details; (ii) the test is that of an average purchaser with

      imperfect recollection; (iii) both visual and phonetic similarity must be




1
    (1969) 2 SCC 131.
2
    AIR 1984 Bom 218.


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     considered; (iv) microscopic comparisons are impermissible; and (v) the

     broad, salient features and overall similarity determine deceptive similarity.

     He then placed reliance upon the decision of this Hon’ble Supreme Court in

     the case of Parle Products (P) Ltd. v. J. P. and Co., Mysore3, to point out

     two marks should not be placed sided by side to find out if there are any

     differences in the design and is so, whether they are of such character as to

     prevent one design from being mistaken for the other and that it would be

     enough if the impugned mark bears such an overall similarity to the

     registered mark as would be likely to mislead a person usually dealing with

     one to accept the other if offered to him.

14. Mr. Gupta submitted that the Plaintiff’s representatives, Ms. Nivedita

     Bagwe and Mr. Suresh Mahalingam, had led evidence by filing their

     Affidavits of Evidence in lieu of examination-in-chief in support of the case

     pleaded in the Plaint. He also pointed out that the documents relied upon by

     the Plaintiff had been duly marked in evidence and that the Defendants,

     despite having been served, have not appeared and contested the Suit. He



3
    (1972) 1 SCC 618.


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    thus pointed out that the Plaintiff’s evidence was uncontroverted and that

    the Plaintiff was therefore entitled to the relief as prayed for, including costs.

15. Mr. Gupta then submitted that, the present Suit being a Commercial Suit,

    the regime of costs under Section 35 of the Code of Civil Procedure, 1908

    ("CPC"), as amended by Section 16 of the Commercial Courts Act, 2015,

    is applicable and costs should follow the event, as the Court is required to

    ensure that a successful litigant is compensated for the costs incurred on

    litigation. He pointed out that under the said provision, the Court is required

    to award realistic rather than nominal costs, and the Court must also take

    into consideration the conduct of the parties. In the present case, he

    submitted that the Defendants’ conduct was clearly dishonest since the

    Defendants had adopted a deceptively similar mark depicted under an

    impugned pirated artwork and had, despite ample opportunities, failed to

    appear, much less justified their adoption of the impugned mark and artistic

    work. He submitted that the Court must take all these factors into

    consideration, including the fact that the products involved are

    pharmaceutical preparations, where public health and safety considerations



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    are involved, which warrants a stricter award of costs, both to compensate

    the Plaintiff and to deter similar conduct by others.


        Reasons and conclusion:


16. After going through the documents, the Plaint, hearing the submissions of

    the learned counsel for the Plaintiff and further upon a perusal of the rival

    marks and labels, I am satisfied that the Plaintiff has made out a case which

    entitles the Plaintiff to the reliefs sought. I say so for the following reasons:

    A. It is clearly evident that the Defendants have simply copied the whole

          of the Plaintiff’s trade mark ‘MEFTAL-SPAS’ except for one letter, 'T',

          with the letter 'I' to form the impugned mark ‘MEFIAL-SPAS’.

          Comparison of the rival products makes it plain that the impugned mark

          and the artistic work are deceptively similar to the Plaintiff’s trade

          marks and artistic work. It is clear that the Defendants have also copied

          the blue and red colour scheme packaging of the Plaintiff’s products and

          its trade dress on the packaging and the body of the impugned products.

          I am also of the view that besides the stark visual similarity between the

          Plaintiff’s and the Defendants’ impugned products, there evidently

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        exists a phonetic resemblance between the Plaintiff’s trade marks viz.,

        ‘MEFTAL’ and 'MEFTAL-SPAS', and the impugned mark ‘MEFIAL-

        SPAS’, which is likely to cause confusion and deception amongst the

        unwary members of the trade and public. Thus, there can be no manner

        of doubt that the visual, phonetic and deceptive similarity between the

        Plaintiff’s products and the impugned products demonstrate that the

        Defendants have blatantly imitated the Plaintiff’s products.

    B. It is clear that the Plaintiff is the registered proprietor of the trade marks

        ‘MEFTAL’ and ‘MEFTAL-SPAS’, as is evidenced from the legal

        proceeding certificates appended at Exhibit PW – 1/4 and PW – 1/5,

        respectively, and such registrations are valid and subsisting.

        Furthermore, the Plaintiff is the registered proprietor of the copyright in

        the original artistic work of ‘MEFTAL-SPAS’ depicted on its strip, as

        is evidenced from the copyright registration certificate appended at

        Exhibit PW – 1/8. Importantly, the Plaintiff has also shown through the

        evidence of Plaintiff’s Witness No. 1, that the Plaintiff is the prior and

        continuous user of the trade marks ‘MEFTAL’ and ‘MEFTAL-SPAS’



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        and for the same, reliance is placed on a statement of Plaintiff’s duly

        certified sales figures, the sales invoices from the year 1991 are

        appended at Exhibits PW – 1/9, PW – 1/10 and PW – 1/11, respectively.

        The Plaintiff has also demonstrated use of the trade marks ‘MEFTAL’

        and ‘MEFTAL-SPAS’ overseas, and for the same, reliance is placed

        upon a list giving sales figures for the products sold in overseas

        countries for the period from 2001-02 to 2015-16 under the trade mark

        ‘MEFTAL-SPAS’, appended at Exhibit PW – 1/13, and also upon a few

        export invoices appended at Exhibit PW – 1/14. The Plaintiff has led

        evidence of Plaintiff’s Witness No. 2, i.e., Mr. Suresh Mahalingam

        (Company Secretary of the Plaintiff), substantiating the sale figures of

        the Plaintiff. Therefore, it is plain that the Plaintiff’s marks and artistic

        works of ‘MEFTAL-SPAS’ have acquired distinctiveness and are

        exclusively associated by the public with the Plaintiff alone, and the

        Plaintiff has also established goodwill in its registered trade marks and

        artworks as aforesaid.

    C. Crucially, the Plaintiff has demonstrated the visual, phonetic and



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        deceptive similarity between the Plaintiff’s marks, artistic work and the

        impugned mark and artistic work. Impugned products are clearly an

        imitation of the Plaintiff’s products, and there exists a likelihood of

        confusion and deception amongst the rival products, and such confusion

        is likely to cause consumers to purchase the Defendants’ product and

        thereby cause loss to the Plaintiff. The Plaintiff's reliance upon the

        decisions in the case of K.R. Chinna Krishna Chettiar, Hiralal

        Prabhudas and Parle Products (P) Ltd. are entirely apposite. Thus, the

        Plaintiff has made out a strong case of both passing off and infringement

        and is therefore entitled to the reliefs as prayed for. Moreover, the

        Plaintiff has, in the present case, claimed for damages to the tune of Rs.

        1,00,000/- (Rupees One Lakh only), however, the Plaintiff has failed to

        lead any evidence in support of such claim. Thus, in my view, the

        Plaintiff is not entitled for the relief of damages.

    D. The present Suit, being a commercial suit, is governed by the provisions

        of the Commercial Courts Act, 2015. Section 35 of the CPC, as

        amended by Section 16 of the Commercial Courts Act, mandates that



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        costs shall ordinarily follow the event and be awarded to the successful

        party. The provision further requires the Court, while determining costs,

        to have due regard, inter alia, to the conduct of the parties.

    E. In the facts of the present case, the record demonstrates that the

        Defendants have been negligent in prosecuting the matter and have, by

        their conduct, compelled the Plaintiff to incur substantial and wholly

        avoidable expenditure. Despite being duly served, the Defendants have

        chosen not to appear or contest the Plaintiff’s claim. There is, therefore,

        nothing on record to even remotely suggest that the adoption of the

        impugned mark ‘MEFIAL-SPAS’ by the Defendants was honest or

        bona fide.

    F. On the contrary, the Defendants’ complete failure to contest the

        proceedings is a relevant circumstance which lends further credence to

        the Plaintiff’s case that the adoption of the impugned mark is entirely

        dishonest and actuated by bad faith. In these circumstances, having

        regard to the conduct of the Defendants and the statutory mandate under

        Section 35 of the CPC as amended, the Plaintiff is entitled to an award



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        of compensatory costs.

 17. Hence, for the reasons mentioned above, I pass the following order:
                                             ORDER

               i.     The Suit is decreed in terms of prayer clause ‘(a)’ to ‘(e)’.

               ii.    Each of the Defendants shall pay a sum of Rs. 5,00,000/-

                      (Rupees Five Lakhs only) as costs to the Plaintiff within a

                      period of 8 weeks from today.

               iii.   In the event the Defendants do not pay the costs within a

                      period of 8 weeks from today, then the said sum will be

                      payable with interest at the rate of 8% per annum.

               iv.    The Plaintiff shall be at liberty to apply for the return of

                      the original documents on such Application being made.

               v.     The Suit is disposed of in the above terms. Interim

                      Applications, if any, are accordingly disposed of




                                                         [ARIF S. DOCTOR, J.]




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