Modicare Ltd. vs Shankar Narayan Sagari
2002 Latest Caselaw 1174 Del

JUDGMENT

C.K. Mahajan, J.

1. This is a suit filed by the plaintiff for permanent injunction restraining the defendant from operating any business, making, selling/transferring, offering for sale, advertising and in any other manner dealing with the goods or services using the plaintiffs trade mark MODICARE or any other mark/name which is identical with or deceptively similar to the plaintiff trademark MODICARE whether as a domain name or otherwise and from doing any other thing as is likely to lead to passing off of

the business and goods of the defendant as those of the plaintiff. A prayer is also made for transfer of domain name modicarenetwok.com to the plaintiff from the register of the Registrar, Domain People, Inc. and for delivery-up of all impugned materials, including brochures stationary and other printed matters for purposes of destruction and/or erasure. A prayer is also made for rendition of accounts of profit illegally earned by the defendant on account of the infringing activities and a decree for the amount ascertained be passed in favor of the plaintiff.

2. Summons in the suit were issued to the defendant on 29th March, 2001 and an interim order was also passed on the said date. Since the service of summons was awaited, fresh summons were issued on 16th August, 2001. On 29th January, 2002, Mr. G. Venktakesh, Advocate, entered appearance on behalf of the defendant and prayed time for filing his power of attorney, written statement and reply to the application. He undertook to file memo of appearance on behalf of the defendant in the registry within three days. Four weeks time was granted to the defendant for filing written statement, reply to the application and vakalatnama. Six months have elapsed. Till date written statement and reply to the application have not been filed by the defendant. However, vakalatnama filed by the counsel is on record. There is no appearance on behalf of the defendant today.

3. Order VIII Rule 1 provides that the defendant shall within thirty days from the date of service of summons on him, present a written statement of his defendant. If the defendant fails to file written statement within the said period of thirty days, he shall be allowed to file the same on such other day, as may be specified by the Court, for reasons to be recorded in writing, but which shall not be later than ninety days from the date of service of summons.

4. In the preset suit, the defendant was served on 31st December, 2001. He was granted four weeks time for filing of the written statement within four weeks by order dated 29th January, 2002. Seven months elapsed from the date of service on the defendant. The defendant has failed to file his written statement within the time provided in the Code of Civil Code and within the time so granted by this Court.

5. Order VIII Rule 10 provides that where any party from whom a written statement is required under Rule 1 or Rule 9 fails to present the same within the time permitted or fixed by the Court, as the case may be, the Court shall pronounce judgment against him.

6. Since the defendant failed to file his written statement, I proceed to pronounce judgment.

7. I have heard learned counsel for the plaintiff, perused the averments made in the plaint and considered the documents on record.

8. The plaintiff gives up its claim for transfer of domain name modicarenet-wok.com to the plaintiff form the register of the Registrar, Domain People, Inc.,

delivery-up of all impugned materials, including brochures, stationary and other printed matter, rendition of accounts and costs in the present proceedings.

9. The plaintiff is the proprietor of the trade mark and trade name 'MODICARE'. The mark 'MODICARE' has been in extensive and continuous use since the year 1996. The name MODI is a household name synonymous with quality, reliability and excellence. The activities of the MODI group spread in several areas of activities, including steel, sugar, Chemicals, tobacco, tea, tyres etc. The use of trademark 'MODICARE' and domain name by any other person is likely to cause confusion and deception. The defendant has registered the domain name 'modicarenetwok.com' without obtaining any permission from the plaintiff in the year 2000. There is a letter dated 15th January, 2002 which was addressed to counsel for the plaintiff by the defendant in reply to letter dt. 10428(G-1) dated 27.10.2000. In the said letter the defendant admits that he has registered the domain name 'modicarenetwok.com' without obtaining permission from the plaintiff as he was not aware that he should not use medicare trade mark or name. The defendant has dropped his intention to develop that website. The defendant has not renewed that domain name for further year.

10. It is settled legal position that when a defendant does business under a name which is sufficiently close to the name under which the plaintiff is trade and that name has acquired a reputation the public at large is likely to be misled that the defendant's business is the business of the plaintiff or is a branch or department of the plaintiff, the defendant is liable for an action in passing off and it is always not necessary that there must be in existence goods of the plaintiff with which the defendant seeks to confuse his own domain name passing off may occur in cases where the plaintiff do not in fact deal with the offending goods.

11. In the absence of written statement and in light of the admissions made by the defendant in his letter dated 15th January, 2002, the allegations made in the plaint are deemed to be admitted.

12. In the circumstances, a decree or permanent injunction is passed in favor of the plaintiff and against the defendant restraining it from operating any business, making, selling/transferring, offering for sale, advertising and any other manner dealing with goods or services using the plaintiffs trademark MODICARE or any other mark/name which is identical or deceptively similar to that of the plaintiffs trademark whether as a domain name or otherwise and from doing any other thing is likely to lead to passing off of the business and goods of the defendant as those of the plaintiff.

The suit and application stands disposed of.