Boston Ivy Healthcare Solutions Private Limited vs. M/S Accord Medical Products Private Limited

$~11 * IN THE HIGH COURT OF DELHI AT NEW DELHI th % Date of decision: 13 December, 2024 + CS(COMM) 24/2019 with I.A. 733/2019 BOSTON IVY HEALTHCARE SOLUTIONS PRIVATE LIMITED .....Plaintiff Through: Ms. Meenakshi Ogra, Mr. Tarun Khurana, Mr. Sampat S. Kang, Mr. Amarjeet Kumar, Mr. Rishi Vohra, Ms. Chhavi Pande and Ms. Yashika Chadha, Advocates. versus M/S ACCORD MEDICAL PRODUCTS PRIVATE LIMITED .....Defendant Through: None. CORAM: HON'BLE MR. JUSTICE AMIT BANSAL AMIT BANSAL, J. (Oral) 1. The present suit has been filed seeking relief of permanent injunction restraining the defendant from infringing the trademarks of the plaintiff, passing off their goods and services as that of the plaintiff, and other ancillary reliefs. ASE SET UP IN THE LAINT C P 2. The plaintiff company operates one of the leading medical e- commerce websites, http://medikabazaar.com and http://medikabaraar.biz. The plaintiff through the above two websites carries on its wholesale business of providing healthcare products and services like medical devices, Signature Not Verified CS(COMM) 24/2019 Page 1 of 10 Digitally Signed By:DINESH KUMAR Signing Date:03.01.2025 18:17:22 hospital equipment and healthcare I.T. solutions. 3. The plaintiff registered its e-commerce websites, th http://medikabazaar.com and http://medikabaraar.biz, on 4 August, 2014 th and 4 September, 2014 respectively and has been continuously and extensively doing business using the trade name/style “Medikabazaar” since 2014. The WHOIS details of the plaintiff’s registered domain names have been filed along with the plaint and have been exhibited as Ex. PW 1/5 (Colly). 4. Since its inception, the plaintiff has exclusively and uninterruptedly conducted its business under the trade name/style bearing the term “Medikabazaar” and has garnered tremendous goodwill and reputation in the market in India and internationally. 5. The plaintiff has provided its revenue figures for the period 2014 to 2018 in paragraph 11 of the plaint, which shows the immense popularity and success of the plaintiff in the medical healthcare sector. It is pertinent to note that the plaintiff’s revenue for the financial year 2017-2018 was approximately Rs. 21.30 crores. 6. The plaintiff has widely advertised and promoted its websites bearing the “Medikabazaar” marks, the details of which have been provided in paragraph 12 of the plaint. It is stated that the expenses incurred by the plaintiff for the advertising and publicity of its marks were approximately Rs. 86.81 lakhs. 7. The defendant company uses and operates a website ‘ https://medicalbazzar.com ’ containing the infringing term “MEDICALBAZZAR” in the same line of business as the plaintiff i.e. providing healthcare products . Signature Not Verified CS(COMM) 24/2019 Page 2 of 10 Digitally Signed By:DINESH KUMAR Signing Date:03.01.2025 18:17:22 8. In October, 2015, the plaintiff came to know of the defendant and its website under the domain name ‘ https://medicalbazzar.com ’ which incorporates conceptually, phonetically, deceptively and visually identical/similar trademark and trade name/style ‘ MEDICALBAZZAR ’. rd 9. On 23 October, 2018, the plaintiff sent a cease-and-desist notice to the defendant calling upon the defendant to refrain from infringing the plaintiff’s marks. th 10. On 24 November, 2018, the defendant replied to the aforesaid cease- and-desist notice denying all the averments made by the plaintiff in the said notice. ASE SET UP IN THE RITTEN TATEMENT C W S 11. The defendant is the prior user of the impugned park ‘ MEDICALBAZZAR ’ since the date of registration of its domain name th “ www.medicalbazaar.com ” is 6 January, 2014. 12. The services offered by the defendant are distinct from those of the Plaintiff as the plaintiff functions as a business-to-business model, whereas the defendant functions as a business-to-consumer model. 13. There is no similarity between the plaintiff’s mark “Medikabazaar” and the impugned mark ‘MEDICALBAZZAR’ P ROCEEDINGS IN THE S UIT nd 14. Summons in the suit were issued on 22 January, 2019. 15. The defendant entered appearance in the present suit and filed a th written statement on 15 March 2019. nd 16. Vide order dated 2 August, 2019, the following issues were framed in the suit: Signature Not Verified CS(COMM) 24/2019 Page 3 of 10 Digitally Signed By:DINESH KUMAR Signing Date:03.01.2025 18:17:22 “1. Whether the defendant is guilty of infringement of the trademark of the plaintiff MEDIKABAZAAR., “MEDIKABAZAAR.COM”, "MEDIKABAZAAR.BIZ", "MEDIKABAZAAR"? OPP 2. Whether the trademark of the defendant, MEDICALBAZZAR is deceptively similar to the registered trademark of the plaintiff, MEDIKABAZAAR? OPP 3. Whether the defendant is a prior user of the mark MEDICALBAZZAR? If so, its effect? OPD 4. Relief.” 17. The plaintiff filed affidavit of evidence (Ex. PW1/X) of its sole th witness, Mr. Kamlesh Kumar, PW1 who was examined on 17 December, th 2019 and cross-examined by the defendant’s counsel on 9 January, 2020 th and 28 July, 2022 after which the recordal of the plaintiff’s evidence was concluded. 18. The defendant was given multiple opportunities to file a list of witnesses and evidence by way of affidavit. However, the defendants failed to file the same. 19. Consequently, the defendant’s right to lead evidence was closed vide th order dated 28 July, 2023 and the matter was listed for final arguments. 20. Since none had appeared on behalf of the defendant for the past th several dates, vide order dated 5 November, 2024 the defendant was proceeded against ex-parte . A NALYSIS AND F INDINGS 21. I have heard the submissions of the counsel for the plaintiff and also perused the material on record. My issue-wise findings are as under: I SSUE NO .3 : W HETHER THE DEFENDANT IS A PRIOR USER OF THE MARK ‘MEDICALBAZZAR’? I F SO , ITS EFFECT ? OPD Signature Not Verified CS(COMM) 24/2019 Page 4 of 10 Digitally Signed By:DINESH KUMAR Signing Date:03.01.2025 18:17:22 22. The defendant in its written statement has averred that it is “prior user” of the term “MEDICALBAZZAR” in respect of providing and selling medical products goods and services through its online platform/website under the name and title “medicalbazzar.com” with the domain name being th claimed to have been registered on 6 January, 2014. However, the defendant has failed to lead any evidence to prove the aforesaid claim and thus, all assertions of alleged “prior use” as made in the written statement remain uncorroborated. 23. Therefore, in view of section 114 of Indian Evidence Act, 1872 an adverse inference is drawn against the defendant that it was not the prior user as claimed by the defendant in the written statement. 24. Hence, Issue no.3 is decided in favour of the plaintiff and against the defendant. I SSUE NO .1 : W HETHER THE DEFENDANT IS GUILTY OF INFRINGEMENT OF THE TRADEMARK OF THE PLAINTIFF MEDIKABAZAAR., “MEDIKABAZAAR.COM”, "MEDIKABAZAAR.BIZ", "MEDIKABAZAAR"? OPP AND I SSUE NO .2 : W HETHER THE TRADEMARK OF THE DEFENDANT , MEDICALBAZZAR IS DECEPTIVELY SIMILAR TO THE REGISTERED TRADEMARK OF THE PLAINTIFF , MEDIKABAZAAR? OPP 25. Both Issues no.1 and 2 are taken up together for consideration. 26. The plaintiff has claimed that it has established goodwill and market presence vis-à-vis its use of the domain names ‘ http://medikabazaar.com ’ and ‘ http://medikabaraar.biz’, and its registered ‘ Medikabazaar ’ trademarks. In this regard, the plaintiff has placed on record the following: Signature Not Verified CS(COMM) 24/2019 Page 5 of 10 Digitally Signed By:DINESH KUMAR Signing Date:03.01.2025 18:17:22 i. Printouts from whois.com website showing domain name th registration of ‘http://medikabazaar.com’ registered on 4 August, th 2014 and ‘http://medikabazaar.biz’ registered on 4 September, 2014 [Ex. PW 1/5 ‘Colly’] ii. Screenshots of the plaintiff’s official website ‘ http://medikabazaar.com ’ [Ex. PW 1/6 ‘Colly’] iii. Various Social media websites used and operated by Plaintiff: - Facebook pages of the plaintiff [Ex. PW 1/9 and Ex. P7 (Colly)] - Twitter pages of the plaintiff [Ex. P8 (Colly)] - LinkedIn pages of the plaintiff [Ex. P9 (Colly)] - YouTube pages of the plaintiff – [Ex. P10 (Colly)] iv. Mobile App created, used and operated by the plaintiff company as available on “Google Play” under the title “Medikabazaar: BRB Medical Supplies” [Ex. PW 1/9] v. Sale invoices for the period 2015-2018 issued by the plaintiff company [Ex. PW 1/15 ‘Colly’] vi. CA certificate showing the plaintiff’s turnover for the FY 2014- 2017 in the medical healthcare sector operating under the trade name/style “ Medikabazaar ” [Ex. PW 1/11], the details of which are given below:

Signature Not Verified CS(COMM) 24/2019 Page 6 of 10 Digitally Signed By:DINESH KUMAR Signing Date:03.01.2025 18:17:22 vii. Copies of invoices evidencing expenses incurred by the plaintiff on advertising and publicity of the trade style/name “ Medikabazaar ” [Ex. PW 1/12 ‘Colly’] take to other issues viii. Copies of sale invoices of the plaintiff’s services in the international market [Ex. PW 1/15 ‘Colly’] 27. The Plaintiff has also obtained various registrations for the plaintiff’s different “ Medikabazaar ” trademarks [Ex. PW 1/7 (Colly)], the details of which are given below:

28. From the averments made in the plaint and the evidence on record, the plaintiff has been able to prove that the plaintiff is the registered proprietor of the ‘ Medikabazaar ’ marks. 29. A comparison between the plaintiff’s marks and the defendant’s marks as seen on their websites is set out below: Signature Not Verified CS(COMM) 24/2019 Page 7 of 10 Digitally Signed By:DINESH KUMAR Signing Date:03.01.2025 18:17:22

30. The following similarities emerge from the above comparison: i. The defendant has used the impugned mark/term ‘MEDICALBAZZAR’ which is phonetically, visually and conceptually similar to the trading style/name “Medikabazaar” of the Plaintiff. ii. The defendant has even copied the dual-colour theme as used by the Plaintiff on its websites. 31. In the written statement, the defendant has simply denied any similarity without explaining or elaborating its claim of there being no similarity between “Medikabazaar” and ‘MEDICALBAZZAR’. Under Order VIII Rule 3 of the Code of Civil Procedure, 1908, bare denials are not Signature Not Verified CS(COMM) 24/2019 Page 8 of 10 Digitally Signed By:DINESH KUMAR Signing Date:03.01.2025 18:17:22 sufficient as the defendant is required to deal specifically with each allegation made by the Plaintiff. 32. The defendant has failed to provide any cogent reasons for adopting the impugned mark/term ‘MEDICALBAZZAR’ which is phonetically, visually and conceptually similar to the trading style/name “Medikabazaar”. 33. In my view, the adoption of the impugned mark and colour scheme by the defendant was not bona fide and shows the malafide intent of the defendant to attempt to pass off their goods and services as that of the plaintiff’s in order to avail of the enormous goodwill created by the plaintiff qua use and promotion of the term ‘ Medikabazaar ’. 34. Based on the discussion above, a clear case of infringement of trademarks is made out. The defendant is using an almost identical trademark in relation to similar services which is likely to cause confusion in the public. 35. In light of the aforesaid, Issues no.1 and 2 are decided in favour of the plaintiff and against the defendant. R ELIEF 36. A decree of permanent injunction is passed in favour of the Plaintiff and against the defendant in terms of prayer clauses 33 A and B of the plaint. 37. In terms of prayer clause 33 D of the plaint, the defendant is directed to take down its domain ‘http://medicalbazzar.com’ which infringes the plaintiff’s registered ‘ Medikabazaar ’ trademarks. 38. In view of the above, the counsel for the plaintiff does not press for the remaining reliefs prayed for in the suit. 39. Let a decree sheet be drawn up accordingly. Signature Not Verified CS(COMM) 24/2019 Page 9 of 10 Digitally Signed By:DINESH KUMAR Signing Date:03.01.2025 18:17:22 40. The pending application stands disposed of. AMIT BANSAL, J DECEMBER 13, 2024 rd Corrected and uploaded on 3 January, 2025 Vivek/- Signature Not Verified CS(COMM) 24/2019 Page 10 of 10 Digitally Signed By:DINESH KUMAR Signing Date:03.01.2025 18:17:22