in the high court of delhi at new delhi...

CS(COMM) 866/2016 of 18

* IN THE HIGH COURT OF DELHI AT NEW DELHI

% Reserved on: 21st September, 2017

Decided on: 29th

November, 2017

+ CS(COMM)866/2016

MAX HEALTHCARE INSTITUTE LIMITED ..... Plaintiff

Represented by: Mr.Sandeep Sethi, Sr.Advocate

with Mr.Manish Dhir,

Advocate

versus

SAHRUDYA HEALTH CARE PRIVATE LIMITED ..... Defendant

Represented by: Mr.Sudhir Chandra Aggarwal,

Sr.Advocate with Ms.Swathi

Sukumar and Ms.Surya

Rajappan, Advocates

CORAM:

HON'BLE MS. JUSTICE MUKTA GUPTA

IA No.11405/2016 (u/O VII R 11 read with Order I Rule 9 CPC by the

defendant)

1. By this application the defendant seeks rejection of the plaint on the

ground of non-joinder of necessary parties and non-disclosure of vital facts.

Learned counsel for the defendant submits that vide order dated 20th July,

2016 when summons were being issued in the suit, the plaintiff had given up

the prayer in clause 44(A)(b) which is of passing off while confining the

reliefs in terms of clauses 44(A)(a), (B), (C) and (D).

2. Learned counsel for the defendant contends that admittedly as per the

plaint, plaintiff is not the owner of the trade mark ‘Max’ which was owned

initially by Max Financial Services limited (in short MFSL) and later

CS(COMM) 866/2016 of 18

transferred to Max India. The plaintiff is the registered owner of six label

marks and thus cannot claim ownership or proprietorship of the word mark

‘Max’. Further, in the plaint, it is not even pleaded that the word ‘Max’ is

essential feature of the plaintiff’s registered label mark. Since the necessary

party in terms of Section 17 of the Trade Marks Act (in short ‘TM Act’) has

not been impleaded, the plaint is liable to be rejected.

3. Rebutting the contention of learned counsel for the plaintiff in respect

of the fact that from the plaint no case for no cause of action is made out and

no bar of law has been shown in entertaining the plaint, learned counsel for

the defendant relies upon the proviso to Order 1 Rule 9 CPC which provides

that the earlier portion of the Rule shall not apply to non-joinder of a

necessary party. Learned counsel for the defendant submits that the suit is

not only barred in terms of Section 17 of the TM Act but also under Sections

52 and 53 of the TM Act and thus liable to be rejected by way of demurer

and not dismissed which can be after the parties are heard.

4. Distinguishing the decision of the Supreme Court in the case reported

as 2006 (33) PTC 281 SC Ramdev Food Products Pvt. Ltd. Vs. Arvindbhai

Rambhai patel & Ors. learned counsel for the defendant submits that the

said decision was rendered by Supreme Court before Section 17 in the

present form was incorporated which amendment has been noted by the

Division Bench of this Court in 233 (2016) DLT 25 Vardhman Buildtech

Pvt. Ltd. & Ors. Vs. Vardhman Properties Ltd. Reliance is also placed on

the decision reported as 236(2017) DLT 333 P.K.Sen Vs. Exxon Mobile

Corporation & Anr.

5. The submission of learned counsel for the plaintiff is that at this stage,

the Court will only look into the averments in the plaint by way of demurer

CS(COMM) 866/2016 of 18

and the suit cannot be dismissed for non-joinder of parties there being

distinction between the dismissal of the suit and rejection of the plaint; the

averments in the plaint bring out cause of action and do not qualify in the

four categories laid down under Order VII Rule 11 CPC warranting rejection

of plaint. Reliance is placed on the decisions reported as JT 2007 (3) SC 69

Prem Lata Nahata & Anr. Vs. Chandi Prasad Sikaria and

MANU/DE/1057/2001 Gajinder Pal Singh Vs. Mehtab Singh & Ors.

Learned counsel for the plaintiff further contends that though plaintiff is the

registered owner of six label marks however the word ‘Max’ is an essential

feature of the six registration certificates in favour of the plaintiff and hence

the defendant is infringing plaintiff’s trade mark by using the word

MAXCURE HOSPITAL, MAXKURE/MAXCURE MEDCITI. Reliance is

also placed on the decisions reported in Ramdev (supra); 2012(50) PTC 433

(Del.) United Biotech Pvt. Ltd. Vs. Orchid Chemicals & Pharmaceuticals

Ltd.; 233 (2016) DLT 25 Vardhman Buildtech Pvt. Ltd. & Ors. Vs.

Vardhman Properties Ltd.; 236(2017) DLT 333 P.K.Sen Vs. Exxon Mobile

Corporation & Anr.; 199 (2013)DLT 242 Keshav Kumar Aggarwal Vs.

M/s.NIIT Ltd. and 214(2014) DLT 123 General Mills Marketing Inc. & Anr.

Vs. South India Beverages Pvt. Ltd. to contend that since the essential

feature of the plaintiff’s mark has been infringed the present suit cannot be

rejected for want of cause of action or due to a bar in the institution of the

suit as per the law laid down.

6. Briefly, the facts pleaded in the plaint are that plaintiff Max

Healthcare Institute Limited (in short Max Healthcare) is a joint venture

company between Max India Limited and Life Healthcare Corporation

incorporated under the Companies Act and pioneer in healthcare services

CS(COMM) 866/2016 of 18

having its registered office at Okhla, New Delhi. The healthcare business of

the plaintiff was transferred to Max India by Max Financial Services

Limited (in short MFSL) in pursuance of a Scheme of Demerger. The trade

mark ‘Max’ is owned and used by Max Financial Services Limited, MFSL

Group Companies, Max India and Max India Group Companies. It is

claimed that Max healthcare started its operation in India in the year 2000

and opened various Max Super Speciality and Multi Speciality hospitals in

the country.

7. In order to maintain the distinctiveness the plaintiff got registered six

label marks which are as under:

Trade Mark

Registration

Number

Registration

Date

Class Goods/ services

1248862 November

11, 2003

42 Hospital and healthcare

1369064 July 5, 2005 42 Clinic, dentistry,

medical research,

healthcare,

home(nursing),

hospitals, medical

assistance, medical

clinic, nursing homes,

physic-therapy,

consulting services

relating to chemical and

pharmaceutical

research,

biotechnological

services, medical and

hygienic services

falling in class 42.

CS(COMM) 866/2016 of 18

Trade Mark

Registration

Number

Registration

Date


1369062 July 5, 2005 42 clinic, dentistry,

medical research,

healthcare,

home(nursing),

hospitals, medical

assistance, medical


physio-therapy,

consulting services


pharmaceutical

research,

biotechnological


hygienic services



medical research,

healthcare,

home(nursing),

hospitals, medical

assistance, medical


physio-therapy,

consulting services


pharmaceutical

research,

biotechnological


hygienic services



medical research,

healthcare,

home(nursing),

CS(COMM) 866/2016 of 18

Trade Mark

Registration

Number

Registration

Date


hospitals, medical

assistance, medical


physio-therapy,

consulting services


pharmaceutical

research,

biotechnological


hygienic services


1253026 March 12,

2003

42 clinic, dentistry,

medical research,

healthcare,

home(nursing),

hospitals, medical

assistance, medical


physio-therapy,

consulting services


pharmaceutical

research,

biotechnological


hygienic services


8. It is claimed that the annual turnover of plaintiff and its

subsidiaries/affiliates is huge and Max Healthcare is expending enormously,

maintaining high standards and quality and developing its business and

services under the trade mark/trade name MAX/MAX HOSPITAL/MAX

CS(COMM) 866/2016 of 18

HEALTHCARE. The plaintiff recently came to know that the defendant has

been using the trade mark MAXCURE HOSPITAL/MAXKURE which is

deceptively very similar to the plaintiff’s trade mark. Plaintiff sent a notice

to the defendant through its counsel on March 04, 2016 and on April 08,

2016 the defendant responded to the plaintiff’s notice refusing to comply

with their demands. Hence the suit.

9. In the light of these averments the plaintiff sought the relief of

permanent injunction from infringement and passing off of the defendant’s

goods and services as that of the plaintiff. However, as noted above, sub-

prayer (b) of prayer Clause 44 A being given up the present suit only alleges

infringement of the plaintiff’s well known trade mark.

10. Indubitably, while dealing with the application under Order VII Rule

11 CPC the Court will look into the averments made in the plaint and

documents filed by the plaintiff and see whether ex facie the plaint discloses

the cause of action. There can be no two opinions on this count and this

issue need not detain this Court any further. The contention of learned

counsel for the plaintiff is that the fact that there is misjoinder of parties

cannot entail rejection of the plaint and at best can be a ground for dismissal

of the suit and the issue of joinder or misjoinder of necessary parties can be

decided only after considering the relevant merits of the case of the plaintiff

and the defendant which may, in a given case, result in dismissal of the suit

at the hearing of the preliminary issues itself.

11. In Prem Lata Nahata (supra) the Supreme Court made a distinction

between the dismissal of the suit and rejection of the plaint and held that

where a plaint suffers from defect of misjoinder of parties or misjoinder of

causes of action either in terms of Order I Rule 1 and Order 1 Rule 3 CPC or

CS(COMM) 866/2016 of 18

Order II Rule 3 CPC the Court itself indicates that the perceived defects do

not make the suit one barred by law or liable to rejection as is clear from

Rules 3A, 4 and 5 of Order 1 of the Code. Further, Rule 9 of Order I CPC

provides that no suit shall be defeated by reason of non-joinder or

misjoinder of parties and the Court may in either case deal with the matter in

controversy so far as it regards the rights and interests of the parties actually

before it. Noting the distinction between the word “barred by any law” used

under Order VII Rule 11(d) CPC the Supreme Court noted that bar is that

which obstructs entry or egress; to exclude from consideration. On

considering the provision of misjoinder of parties or of causes of action the

Supreme Court held that such a defect by no stretch of imagination can be

held to be barred by any law within the meaning of Order VII Rule 11 (d) of

the CPC. Sub-section (1) of Section 80 provides that “no suit shall be

instituted”. This is therefore a bar to the institution of the suit and that is

why courts have taken the view that in a case where notice under Section 80

of the Code is mandatory, if the averments in the plaint indicate the absence

of a notice, the plaint is liable to be rejected.

12. The Supreme Court in Prem Lata Nahata (supra) was not dealing

with the case of non-joinder of a necessary party but with the defect of

misjoinder of parties or misjoinder of causes of action. The issue of non-

joinder of necessary parties was dealt by this Court in Gajinder Pal Singh

(supra), and on the peculiar facts and circumstances of the case wherein the

whereabouts of one of the legal heirs were not known for the last seven

years and thus he was presumed to be dead, this Court held that non-joinder

of a necessary party in such facts is not covered by any of the clauses of

Order VII Rule 11 CPC.

CS(COMM) 866/2016 of 18

13. At this stage, it would be relevant to note the proviso to Order I Rule

9 CPC which reads as under:-

9. Mis-joinder and non-joinder.- No suit shall be defeated

by reason of the mis-joinder or non-joinder of parties, and

the court may in every suit deal with the matter in

controversy so far as regards the rights and interests of the parties actually before it:

Provided that nothing in this rule shall apply to non-joinder of a necessary party.

14. Thus, though a suit cannot be defeated/rejected for misjoinder or non-

joinder of parties, however, in case of non-joinder of a necessary party the

suit may not only be liable to be dismissed on a preliminary issue being

framed in this regard but also liable to be rejected by way of demurer on the

basis of averments in the plaint on an application under Order VII Rule 11

CPC or otherwise.

15. The present suit seeks a relief under Trade Marks Act, 1999 (in short

the TM Act) alleging infringement of its registered trade mark, the relief of

passing off having been given up. Sections 52 and 53 of the TM Act read as

under:-

52. Right of registered user to take proceedings against

infringement.— (1) Subject to any agreement subsisting

between the parties, a registered user may institute

proceedings for infringement in his own name as if he were

the registered proprietor, making the registered proprietor

a defendant and the rights and obligations of such

registered user in such case being concurrent with those of

the registered proprietor.

(2) Notwithstanding anything contained in any other law,

a registered proprietor so added as defendant shall not be

https://indiankanoon.org/doc/317321/


CS(COMM) 866/2016 of 18

liable for any costs unless he enters an appearance and

takes part in the proceedings.

53. No right of permitted user to take proceeding against

infringement.— A person referred to in sub-clause (ii) of

clause (r) of sub-section (1) of section 2 shall have no right

to institute any proceeding for any infringement.

16. A bare reading of Sections 52 and 53 of the TM Act shows that only a

registered proprietor or a registered user of the trade mark is competent to

institute the proceedings for infringement in his own name. Thus, the very

maintainability of a suit for infringement is by a registered

proprietor/registered user. As per the plaint, admittedly, plaintiff is not the

registered proprietor/registered user of the trade mark ‘Max’. It is the

registered owner/proprietor of the composite label mark and word ‘Max’ is a

part of the mark. Dealing with the issue whether a non-registered proprietor

of the trade mark can institute a suit alleging infringement and

distinguishing the decision of the Supreme Court in Ramdev (supra) this

Court in P.K.Sen (supra) held as under:-

16. Sections 52 and 53 are extremely important for the

purposes of this case. Section 52(1)provides that subject to

any agreement subsisting between the parties, a registered

user may institute proceedings for infringement in his own

name as if he were the registered proprietor. Of course, in

such eventuality, the registered proprietor has to be made a

defendant. Furthermore, in such cases, the rights and

obligations of such a registered user would be concurrent

with those of the registered proprietor. Since the plaintiff No.2

/respondent No.2 is admittedly not a registered user; Section

52(1) does not come into play insofar as it is concerned. But,

what is important is that it has to be kept in mind that a

registered user has been given the right to institute the







CS(COMM) 866/2016 of 18

proceedings for infringement in his own name as if he were

the registered proprietor. Section 52(2) also deals with a case

where a registered user has instituted a proceeding in his own

name and does not arise for consideration in the present

case. Section 53, in clear departure from Section 52,

stipulates that a person referred to in Section 2(1)(r)(ii) shall

have no right to institute any proceeding for any infringement.

The person referred to in Section 2(1)(r)(ii) is a person other

than the registered proprietor and registered user and would

obviously include a ‘permitted user'. In other words, the only

persons who can bring a suit for infringement of a trade mark

would be the registered proprietor himself or the registered

user and certainly not a permitted user. Therefore, in our

view, the submission made by the learned counsel for the

appellant that the suit could not have been instituted by the respondent No.2/plaintiff No.2 is correct.

17. Section 134 of the said Act has already been extracted

above. It may be seen that Section 134(1) refers to three kinds

of suits:-

a) for the infringement of a registered trade mark;

b) relating to any right in a registered trade mark;

c) for passing off arising out of use by the defendant of any

trade mark which is identical with or deceptively similar to the plaintiff's trade mark, whether registered or unregistered.

Section 134(2), however, relates only to the suits specified in

clauses (a) and (b) above of sub-section(1). In other

words, Section 134(2) of the said Act is relatable only to suits

for infringement of a registered trade mark or for suits

relating to any rights in a registered trade mark. It does not

relate to an action of passing off. It may be remembered that

the present suit is one of an action based on an alleged

infringement of a registered trade mark. The expression used

in Section 134(2), which is of material importance, is ‘person

instituting the suit’. From our discussion above on Section

53 of the said Act, it is evident that a permitted user cannot













CS(COMM) 866/2016 of 18

institute a suit for infringement of a registered trade mark.

Therefore, the plaintiff No.2/respondent No.2 by itself could not have filed the present suit.

18. We now come to the next expression which is of

importance where there are multiple plaintiffs. The expression

is ― ‘where there are more than one such persons’. The

expression ‘such persons’ would obviously refer to persons

instituting the suit and would obviously mean the persons who

are entitled to institute the suit. It would definitely, in our

view, not extend to persons who are disentitled to institute a

suit or who do not have a right to institute any proceeding for

infringement. In other words, the plaintiff No.2/respondent

No.2 cannot be covered by the expression ’person instituting

the suit’ or within the expression ‘such persons where there are more than one plaintiff’.

19. At this juncture, we may also point out that the

Explanation to Section 134(2) provides that for the purposes

of sub-section (2), ‘person’ includes the registered proprietor

and the registered user. According to the learned single Judge

and the respondents, this is an inclusive definition and is not a

restrictive one. It is also the case of the respondents that the

word ‘person’ would also include a ‘permitted user’. On the

contrary, the contention of the appellants is that it is an

exhaustive one and the reference to person could only be to a

registered proprietor and a registered user. In our view, both

submissions are not correct. It is true that the definition of a

‘person’, as given in the Explanation cannot be restricted to

‘registered proprietor' and the ‘registered user' and on the

face of it, it is a definition of the inclusive kind and not of a

restrictive or exhaustive nature. We say so because Section

134(2)deals not only with cases of infringement of a

registered trade mark as indicated in clause (a) of sub-section

(1) of Section 134, but also pertains to suits relating to any

right in a registered trade mark which may, if permitted by

other provisions of the said Act, be instituted by persons other

than the registered proprietor and the registered user. But,

it would certainly not include a permitted user suing for an





CS(COMM) 866/2016 of 18

infringement of a trade mark. This is so because there is an

express prohibition under Section 53 of the said Act. The

learned single Judge seems to have lost sight of this aspect of

the matter. If, indeed, the word ―person would include a

permitted user, then it would mean that while on the one

hand Section 53 bars such a person from instituting any

proceeding for infringement, Section 134(2) would yet regard

him as a person instituting the suit. This interpretation would

be contrary to the terms of the enactment. Consequently,

while we are of the view that the word ‘person’ as appearing

in Section 134(2) is not restricted to registered proprietor and

registered user, it certainly does not include a permitted user in a suit for infringement of a registered trade mark.

17. It is thus apparent that the present suit seeking infringement of the

word ‘Max’ is liable to be rejected for non-joinder of necessary parties

under the proviso to Order I Rule 9 CPC read with Section 52, 53 and 134 of

the TM Act, however as noted above plaintiff is the registered owner of six

label marks namely Max Health Care Max Hospital

Max Medcentre Dr. Max Clinic

and Max Health Staff and the claim of

the plaintiff in the plaint is that the word ‘Max’ is an essential feature of the

plaintiff’s six label marks and thus by using the word ‘Max’ the defendant

has infringed the essential feature of its label mark. Though learned counsel

for the defendant contends that in the plaint it is not stated that the word

‘Max’ is an essential feature of its trademark but a perusal of para 6 of the

plaint as noted below contains the averment that ‘Max’ is an essential part of

the trade mark:

“6. The trade mark MAX has been owned and used by

MFSL, MFSL group companies, Max India and Max India

group companies in respect of goods and services falling in





CS(COMM) 866/2016 of 18

various categories, and has been in use not just as a trade

mark, but also as a trade name for various business

ventures. For all the activities of MFSL, MFSL group

companies, Max India and Max India group companies, the

mark MAX has been and continues to be the most integral

part of the business name and also the trade mark. MFSL

has been using the word MAX since before the Scheme.

Each of the above named companies also uses the name

MAX as an essential part of its trade mark and trade name

various associated and connected concerns as under:

Max Life Insurance Co. Limited

Max Bupa Health Insurance Co.Ltd.

Max Healthcare Institute Limited (Plaintiff)

Max Speciality Films Limited”

18. Section 17 of the TM Act reads as under:-

17. Effect of registration of parts of a mark.— (1) When a

trade mark consists of several matters, its registration

shall confer on the proprietor exclusive right to the use of

the trade mark taken as a whole.

(2) Notwithstanding anything contained in sub-section (1),

when a trade mark—

(a) contains any part—

(i) which is not the subject of a separate application

by the proprietor for registration as a trade mark;

or

(ii) which is not separately registered by the

proprietor as a trade mark; or

(b) contains any matter which is common to the trade

or is otherwise of a non-distinctive character,

the registration thereof shall not confer any exclusive right

in the matter forming only a part of the whole of the trade

mark so registered.







CS(COMM) 866/2016 of 18

19. The Division Bench of this Court in the decision reported as 2013

(53) PTC 1 (Del)(DB) Himalaya Drug Company Vs. S.B.L. Limited dealing

with the essential features of a trade mark observed:

“Essential Features

19. The courts have propounded the doctrine of prominent

and essential feature of the trade mark for the purposes of

adjudication of the disputes relating to infringement of trade

mark. While deciding the question of infringement, the court has

to see the prominent or the dominant feature of the trade mark.

Even the learned single judge agrees to this proposition when

the learned judge quotes McCarthy on Trade Marks that all

composite marks are to be compared as whole. However, it is

dependent on case to case to basis as a matter of jury question

as to what can be the possible broad and essential feature of the

trade mark in question.

20. It is settled law that where the defendant's mark contains

the essential feature of the plaintiff's mark combined with other

matter, the correct approach for the court is to identify an

essential feature depending particularly "on the court's own

judgment and burden of the evidence that is placed before the

Court". In order to come to the conclusion whether one mark is

deceptively similar to another, the broad and essential features

of the two are to be considered. They should not be placed side

by side to find out if there are differences, rather overall

similarity has to be judged. While judging the question as to

whether the defendant has infringed the trade mark or not, the

court has to consider the overall impression of the mark in the

minds of general public and not by merely comparing the

dissimilarities in the two marks.

21. The ascertainment of an essential feature is not to be by

ocular test alone but if a word forming part of the mark has

come in trade to be used to identify the goods of the owner of

the trade mark, it is an infringement of the mark itself to use

that word as the mark or part of the mark of another trader for

which confusion is likely to result. The likelihood of confusion

CS(COMM) 866/2016 of 18

or deception in such cases is not disproved by placing the two

marks side by side and demonstrating how small is the chance

of error in any customer who places his order for goods with

both the marks clearly before him, for orders are not placed, or

are often not placed, under such conditions. It is more useful to

observe that in most persons the eye is not an accurate recorder

of visual detail and that marks are remembered rather by

general impressions or by some significant detail than by any

photographic recollection of the whole". In the decision

reported as (1951) 68 RPC 103 at page 105, De Cordova v.

Vick Chemical Co., the plaintiffs were the proprietors of a label

containing the words "Vick's VapoRub" as the essential feature,

registered in Jamaica, and the defendants used a similar label

with the words "Karsote Vapour Rub" as the essential feature,

and it was shown that the expression "VapoRub" had become

distinctive of the plaintiff's goods in Jamaica, an action for

infringement was successful. (See De Cordova v. Vick Chemical

Co. (supra), (1941) 58 RPC 147, Saville Perfumery Ld. v. June

Perfect Ld., AIR 1972 SC 1359 at 1362, M/s. National

Chemicals and Colour Co. and Others v. Reckitt and Colman of

India Limited and AIR 1991 Bombay 76: 1991 (11) PTC 217

(Bom) (DB), M/s. National Chemicals and Colour Co. and

others vs. Reckitt and Colman of India Limited and another)

22. Identification of essential features of the trade marks has

been discussed in details in the case of Kaviraj Pandit Durga

Dutt Sharma vs. Navaratna Pharmaceutical Laboratories

(supra):-

In an action for infringement, the plaintiff must, no

doubt, make out that the use of the defendant's mark is

likely to deceive, but where the similarity between the

plaintiff's and the defendant's mark is so close either

visually, phonetically or otherwise and the court reaches

the conclusion that there is an imitation, no further

evidence is required to establish that the plaintiff's rights

are violated. Expressed in another way, if the essential

features of the trade mark of the plaintiff have been

CS(COMM) 866/2016 of 18

adopted by the defendant, the fact that the get-up,

packing and other writing or marks on the goods or on

the packets in which he offers his goods for sale show

marked differences, or indicate clearly a trade origin

different from that of the registered proprietor of the

mark would be immaterial;......

When once the use by the defendant of the mark which is

claimed to infringe the plaintiff's mark is shown to be "in

the course of trade", the question whether there has been

an infringement is to be decided by comparison of the

two marks. Where the two marks are identical no further

questions arise; for then the infringement is made out.

23. The Court in determining whether the Defendant's mark is

deceptively similar to the mark of the Plaintiffs were enunciated

in the judgment of Mr. Justice Parker in the decision reported

as 1906(23) RPC 774, Pionotist Case:

You must take the two words. You must judge them, both

by their look and by their sound. You must consider the

goods to which they are to be applied. You must consider

the nature and kind of customer who would be likely to

buy those goods. In fact, you must consider all the

surrounding circumstances; and you must further

consider what is likely to happen if each of those

trademarks is used in a normal way as a trade mark for

the goods of the respective owners of the marks. If,

considering all those circumstances, you come to the

conclusion that there will be a confusion-that is to say,

not necessarily that one man will be injured and the

other will gain illicit benefit, but that there will be a

confusion in the mind of the public which will lead to

confusion in the goods-then you may refuse the

registration, or rather you must refuse the registration in

that case.”

CS(COMM) 866/2016 of 18

20. Since in the plaint, plaintiff claims and even from the label marks as

noted above it is evident that ‘Max’ is the essential feature of the label mark

of the six trademarks, thus, the use of the word ‘Max’ by the defendant

amounts to infringement. Consequently, the plaint cannot be rejected at this

stage.

21. The application is dismissed.

(MUKTA GUPTA)

JUDGE

NOVEMBER 29, 2017

‘rk’

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