Opella Healthcare Group vs Pureca Laboratories Pvt Ltd
- Court
- Delhi High Court
$~43
* IN THE HIGH COURT OF DELHI AT NEW DELHI
nd
% Date of Decision: 22 July, 2026
+ CS(COMM) 552/2024 & I.A. 32616/2024
OPELLA HEALTHCARE GROUP .....Plaintiff
Through: Mr. Peeyoosh Kalra, Ms. V. Mohini
and Ms. Aarti Aggarwal, Advocates.
versus
PURECA LABORATORIES PVT LTD .....Defendant
Through: Defendant is ex parte.
CORAM:
HON'BLE MS. JUSTICE JYOTI SINGH
JUDGEMENT
JYOTI SINGH, J. (ORAL)
I.A. 4622/2025
1. This application is filed on behalf of the Plaintiff under Order XIII-A
of the Commercial Courts Act, 2015 read with Rule 27 of Delhi High Court
Intellectual Property Rights Division Rules, 2022 seeking summary
judgment. Despite service, there was no representation on behalf of the
Defendant and vide order dated 20.07.2026, Defendant was set ex parte .
2. Present suit is instituted on behalf of the Plaintiff under Sections 134
and 135 of the Trade Marks Act, 1999 (‘1999 Act’) and Section 51 of the
Copyright Act, 1957 (‘1957 Act’) seeking inter alia a decree of permanent
injunction restraining the Defendant from using the mark PHENSERYL and
Signature Not Verified
CS(COMM) 552/2024 Page 1 of 12
Digitally Signed
By:KAMAL KUMAR
Signing Date:29.07.2026
23:10:46
and/or any other mark identical/deceptively
similar to Plaintiff’s marks PHENSEDYL,
and
in any manner whatsoever, amounting to
infringement and/or passing off.
3. Case of the Plaintiff as set out in the plaint is that it adopted the mark
PHENSEDYL in 1954 in respect of pharmaceutical products for treating
running nose, watery eyes, sneezing, throat irritation etc. Product under the
mark PHENSEDYL was first introduced internationally in 1950s and in
India, in 1995. Plaintiff also adopted a unique and distinctive
packaging/trade dress for the said product. Trademark PHENSEDYL was
registered in favour of the Plaintiff on 21.07.1954 in Class 05 for
“ pharmaceutical preparations and substances for human use and veterinary
use” and registration has been renewed upto 31.07.2030. Plaintiff has also
secured registrations in the marks
and
in Class 05 and the registrations are valid and subsisting. In India, products
under the PHENSEDYL marks are sold by Rhone Poulenc India Ltd., sub-
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Digitally Signed
By:KAMAL KUMAR
Signing Date:29.07.2026
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licnesor of the Plaintiff since 1995 and Abbott Healthcare Pvt. Ltd. since
2010, through a sub-licensor Piramal Healthcare (now Piramal Pharma
Limited).
4. Aggrieved by Defendant’s adoption of the marks PHENSERYL and
and trade dress/packaging
,
which according to the Plaintiff were deceptively similar to Plaintiff’s marks
and trade dress, Plaintiff filed the present suit and vide ex parte ad interim
order dated 09.07.2024, Court restrained the Defendant and all others acting
on its behalf from selling its products under the impugned marks and trade
dress/packaging. Interim injunction order has continued till date.
5. Mr. Peeyoosh Kalra, learned counsel for the Plaintiff submits that
Plaintiff is the registered proprietor of the PHENSEDYL marks and has
statutory right to use the same exclusively and restrain third parties from
their use, unauthorizedly. After service of summons, Defendant filed a
written statement in November, 2024 and the defence taken was registration
in the imugned marks PHENSERYL and
as
also the copyright in the artistic work of the label mark. Plaintiff filed
rectification petitions C.O. (COMM.IPD-TM) 92/2024 under Sections
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CS(COMM) 552/2024 Page 3 of 12
Digitally Signed
By:KAMAL KUMAR
Signing Date:29.07.2026
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47(1)(A) and 57 of 1999 Act for rectification of the impugned marks bearing
registration No.3791026 in Class 05 on account of phonetic and visual
deceptive similarity to Plaintiff’s marks as also C.O. (COMM.IPD-CR)
9/2024 under Section 50 of 1957 Act read with Rule 71(1) of the
Copyrigthts Rules, 2013 for rectification of the Register of Copyright for
removal of registration in favour of the Defendant under No.A-
130319/2019. These petitions were allowed by this Court vide judgment
dated 12.11.2024 and both registrations have been cancelled and direction
has been issued to rectify the registers and to the best of the knowledge of
the Plaintiff, the judgment has not been challenged.
6. It is, therefore, urged by Mr. Kalra that there being no other defence
in the written statement, no useful purpose will be served in recording oral
evidence and continuing with the suit since there is no real prospect of the
Defendant defending the claims made in the plaint and possibly, for this
reason Defendant has stopped appearing in the matter.
7. Heard Mr. Kalra and examined his submissions.
8. Plaintiff is a Corporation existing under Laws of France and is a part
of the Sanofi Group, which is stated to be one of the largest pharmaceutical
groups in the world and has diversified into a wide range of therapeutic
solutions. Plaintiff adopted the mark PHENSEDYL in 1954 in respect of a
syrup used to treat allergic symptoms such as sneezing, throat infection etc.
The mark was used in India for the first time in 1995 and Plaintiff also
adopted a unique trade dress/packaging for selling its products. In order to
secure statutory rights in the marks, Plaintiff obtained registrations as
follows:-
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Digitally Signed
By:KAMAL KUMAR
Signing Date:29.07.2026
23:10:46
9. In India, Plaintiff has widely advertised and marketed its products and
has garnered immense goodwill and reputation. The goodwill of the
Plaintiff/Sanofi Group is reflected from the net sales during the period 2014-
2023 as follows:-
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CS(COMM) 552/2024 Page 5 of 12
Digitally Signed
By:KAMAL KUMAR
Signing Date:29.07.2026
23:10:46
10. The distinctive packaging adopted by the Plaintiff comprises a unique
colour combination of blue and pink and Plaintiff has a copyright in the
original ‘artistic work’ under the 1957 Act. Between 2020 to 2023,
Plaintiff’s PHENSEDYL products have earned net revenues as follows:-
11. It is stated in the plaint that in March, 2024, Plaintiff came across
trademark registration of the mark
in Class 05
in favour of Director of the Defendant and while user was claimed from
01.12.2016, there were no supporting documents with the trademark
application and significantly, Plaintiff’s marks PHENSEDYL and
were cited as conflicting marks. Yet the imugned marks
proceeded to registration erroneously and this Court has rightly cancelled
the registrations.
Signature Not Verified
CS(COMM) 552/2024 Page 6 of 12
Digitally Signed
By:KAMAL KUMAR
Signing Date:29.07.2026
23:10:46
12. In a nutshell, the case of the Plaintiff is that it is a prior adopter,
continuous user and registered proprietor of the PHENSEDYL trademarks in
Class 05. Defendant has adopted deceptively similar marks for identical
products and trade channels and consumer base being common, there is
every likelihood of confusion. It needs no reiteration that in the field of
pharmaceuticals, confusion has no place. In Cadila Health Care Ltd. v.
Cadila Pharmaceuticals Ltd., (2001) 5 SCC 73 , the Supreme Court
observed that public interest would support lesser degree of proof showing
confusing similarity in case of trademarks in respect of medicinal products
as against other non-medicinal products. Drugs are poisons, not sweets.
Confusion between medicinal products may, therefore, be life threatening,
not merely inconvenient. Noting the frailty of human nature and pressures
on doctors, there should be as many clear indicators as possible to
distinguish two medicinal products from each other. In a nutshell, the
Supreme Court held that the threshold of measuring confusion must be
different in pharmaceutical products as compared to other products.
13. Defendant was set ex parte on 20.07.2026 and none has appeared
even today. Perusal of written statement shows that the sole defence of the
Defendant is that the impugned mark and the artistic work in the impugned
trade dress are registered in its favour. As noted above, on the Plaintiff filing
rectification petitions, the Court has cancelled both the registrations by a
detailed judgment dated 12.11.2024 and as per the Plaintiff, Defendant has
not challenged the said judgment till date. Defendant has not traversed this
position and therefore, the judgment has attained finality.
14. It is relevant to note that in the judgment dated 12.11.2024, Court has
observed that Plaintiff has various trademark registrations under Class 05 in
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CS(COMM) 552/2024 Page 7 of 12
Digitally Signed
By:KAMAL KUMAR
Signing Date:29.07.2026
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the mark PHENSEDYL, which are valid and subsisting and usage of the
marks dates back to 21.07.1954 and that Plaintiff has substantially
demonstrated the usage through sales under the marks. Significantly, Court
has rendered certain crucial findings in favour of the Plaintiff i.e., Plaintiff
has been operating, marketing and selling its products in India through its
sub-licencees, Rhone Poulenc India Ltd., since 1995 and Abbott Healthcare
Pvt. Ltd. since 2010 and it is manifest that in India, Plaintiff has extensively,
continuously and regularly used its trademarks PHENSEDYL/
PHENSEDYL /
and
; Defendant
has claimed user since 01.12.2016 but there is no supporting evidence on
record to substantiate this position and the sole defence of the Defendant is
its registrations in the trademarks and copyright and a blanket denial of
resemblance in the rival marks; Plaintiff is a prior user since 1995 while use
of the Defendant as claimed is only from 2016; the rival marks are visually
and phonetically similar; dark blue colour in the trade dress/packaging and
white font to depict the names are prominent and dominant parts of both the
marks in the artistic works; Defendant has attempted to bring its packaging
as close as possible to that of the Plaintiff; the products i.e., cough syrups are
similar; and Defendant’s marks are likely to cause confusion and give a
general impression that they have an association with the Plaintiff and
consumers and members of trade are likely to be confused or deceived.
Relying on several judicial precedents, Court has cancelled the registrations.
With these observations and findings of the Co-ordinate Bench, the issue of
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CS(COMM) 552/2024 Page 8 of 12
Digitally Signed
By:KAMAL KUMAR
Signing Date:29.07.2026
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deceptive similarity in the rival marks and trade dresses/packaging is settled.
For the ease of reference, comparative of the rival marks/products/trade
dresses is as follows:-
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CS(COMM) 552/2024 Page 9 of 12
Digitally Signed
By:KAMAL KUMAR
Signing Date:29.07.2026
23:10:46
15. Mr. Peeyoosh Kalra is therefore right in contending that the
Defendant has no real prospect of defending the claims of the Plaintiff and
succeeding in the suit and therefore, no useful purpose will be achieved in
proceeding to record ex parte evidence. In this context, I may allude to some
useful observations of this Court in Su-Kam Power Systems Ltd. v. Kunwer
Sachdev and Another, 2019 SCC OnLine Del 10764 , as follows:-
“ 90. To reiterate, the intent behind incorporating the summary judgment
procedure in the Commercial Court Act, 2015 is to ensure disposal of
commercial disputes in a time-bound manner. In fact, the applicability of
Order XIIIA, CPC to commercial disputes, demonstrates that the trial is
no longer the default procedure/norm.
91. Rule 3 of Order XIIIA, CPC, as applicable to commercial disputes,
empowers the Court to grant a summary judgement against the defendant
where the Court considers that the defendant has no real prospects of
successfully defending the claim and there is no other compelling reason
why the claim should not be disposed of before recording of oral evidence.
The expression “real” directs the Court to examine whether there is a
“realistic” as opposed to “fanciful” prospects of success. This Court is of
the view that the expression “no genuine issue requiring a trial” in
Ontario Rules of Civil Procedure and “no other compelling reason…..for
trial” in Commercial Courts Act can be read mutatis mutandis.
Consequently, Order XIIIA, CPC would be attracted if the Court, while
hearing such an application, can make the necessary finding of fact, apply
the law to the facts and the same is a proportionate, more expeditious and
less expensive means of achieving a fair and just result.
92. Accordingly, unlike ordinary suits, Courts need not hold trial in
commercial suits, even if there are disputed questions of fact as held by the
Canadian Supreme Court in Robert Hryniak (supra), in the event, the
Court comes to the conclusion that the defendant lacks a real prospect of
successfully defending the claim.”
16. The case of the Plaintiff is covered on all four corners in law by the
aforesaid judgment insofar as the question of passing a summary judgment
is concerned. Plaintiff has established the registrations of the PHENSEDYL
marks and deceptive similarity of the rival marks and trade
dresses/packaging is evident from a bare comparison of the marks and
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CS(COMM) 552/2024 Page 10 of 12
Digitally Signed
By:KAMAL KUMAR
Signing Date:29.07.2026
23:10:46
moreover, there is already a judicial finding on this aspect in the judgment
dated 12.11.2024. The rival goods i.e., cough syrups are identical and there
is every likelihood of confusion amongst members of public since trade
channels and consumers are common. Plaintiff has succeeded in making out
a case of infringement of its registered PHENSEDYL trademarks under
Section 29 of the 1999 Act. Clearly, Defendant has adopted the impugned
marks as also the impugned trade dress/packaging to come as close as
possible to Plaintiff’s marks and trade dress, a finding already rendered in
the judgment dated 12.11.2024 and apparent from the nature of the marks
and the trade dress. It is apparent that Defendant wants to encash on the
immense goodwill and reputation of the Plaintiff, evident from sales
turnover for which invoices, promotional material, annual reports of the
Plaintiff/Sanofi Group for the period 2018-2023 have been placed on record.
The only objective of the Defendant in imitating was to represent to the
public that its goods are associated with the Plaintiff and this is causing
irreparable harm and injury to the goodwill of the Plaintiff as also distinctive
character of the PHENSEDYL marks and amounts to passing off.
17. For all the aforesaid reasons, I am of the view that Plaintiff has made
out a case for summary judgment and relegating the Plaintiff to lead ex parte
evidence will be an exercise in futility as the Defendant has no real prospect
of defending Plaintiff’s claims in the suit.
18. Application is allowed and disposed of.
CS(COMM) 552/2024 & I.A. 32616/2024
19. In light of the order passed in I.A. 4622/2025, the suit is decreed in
terms of paragraph 38 (a) to (e) of the plaint since Plaintiff gives up the
reliefs claimed in paragraph 38 (f) to (h).
Signature Not Verified
CS(COMM) 552/2024 Page 11 of 12
Digitally Signed
By:KAMAL KUMAR
Signing Date:29.07.2026
23:10:46
20. Registry is directed to draw up the decree sheet.
21. Suit stands disposed of along with pending application.
JYOTI SINGH, J
JULY 22, 2026/YA
Signature Not Verified
CS(COMM) 552/2024 Page 12 of 12
Digitally Signed
By:KAMAL KUMAR
Signing Date:29.07.2026
23:10:46