JUDGMENT :

Rajiv Sahai Endlaw, J.

IA No. 8439/2016 (of the plaintiff under Order XXXIX Rules 1 and 2 of the Code of Civil Procedure, 1908)

1. The plaintiff instituted this suit, to (i) restrain the defendant from providing any services under the name MAXCURE HOSPITAL/MAXKURE/MAXCURE MEDICITI or any other mark/name which is a fraudulent or obvious imitation of or deceptively or confusingly similar to the plaintiffs trade mark MAX/MAX HOSPITAL; (ii) restrain the defendant from, by using the name MAXCURE HOSPITAL/MAXKURE/MAXCURE MEDICITI, pass off its services/projects, as that of the plaintiff; and, (iii) for ancillary reliefs.

2. The suit came up first before this Court on 20th July, 2016 when the defendant, being on caveat, appeared. The plaintiff on that date gave up the relief claimed in the suit for passing off and confined the suit to the relief of infringement of trade mark. The suit was entertained and summons thereof and notice of the application for interim relief issued and the statement of the defendant, that it did not propose to launch any fresh operations under the mark MAXCURE or MAXKURE, was recorded and the defendant ordered to be bound therewith.

3. Pleadings in the suit have been completed. The defendant applied under Order VII Rule 11 of the CPC for rejection of the plaint on the ground of non-joinder of necessary parties and non-disclosure of vital facts. The said application was dismissed vide judgment dated 29th November, 2017. The senior counsels were heard on the application for interim relief on 6th December, 2017, 20th December, 2017, 10th January, 2018 and 19th February, 2018 and orders reserved.

4. It is inter alia the case of the plaintiff, that (i) the trade mark MAX has been owned and used by Max Financial Services Ltd. (MFSL), MFSL group of companies, Max India and Max India group of companies, in respect of goods and services falling under various categories, and has been in use not just as a trade mark but also as a trade name for various business ventures; mention is made of Max Life Insurance Co. Ltd. Max Bupa Health Insurance Co. Ltd. Max Healthcare Institute Ltd. i.e. the plaintiff, Max Speciality Films Ltd. Hutchison Max Telecom Pvt. Ltd. Comsat Max Pvt. Ltd. Max GB Pvt. Ltd. Max Atotech Pvt. Ltd. and Avnet Max Pvt. Ltd.; (ii) the plaintiff is a joint venture between Max India Ltd. and Life Healthcare group, which is a premier South African healthcare service provider; (iii) the existing healthcare business of the plaintiff was transferred by MFSL to Max India in pursuance of a Scheme of Demerger; (iv) the plaintiff started its operations in India in 2000 as a division of MFSL and since June, 2002, the plaintiff was formed as an independent company; (v) since the year 2000, the plaintiff has opened nearly fourteen hospitals/ healthcare centres in Delhi, Gurgaon, Mohali, Bathinda, Dehradun and Greater Noida; (vi) the plaintiff also organizes regular health camps and health awareness/check up programmes in various parts of the country and abroad; (vii) the word MAX has come to be closely associated with the plaintiff and the plaintiff has various registrations of MAX HEALTHCARE, MAX HOSPITAL, MAX MEDCENTRE, DR. MAX CLINIC and MAX HEALTHSTAFF, all under Class 42 and dated between 2003-2005; (viii) the plaintiff, just prior to the institution of the suit, was made aware of the use of the mark/name MAXCURE HOSPITAL/MAXKURE by the defendant and on making investigations learnt that the defendant has also adopted MAXCURE MEDICITI, which is deceptively similar to plaintiffs trade mark; (ix) the defendant is providing full fledged healthcare services; (x) it was further learnt that the marks MAXCURE HOSPITAL/MAXKURE and MAXCURE MEDICITI were recently adopted by the defendant and the defendant were earlier running the said hospitals/health facilities under the name of Sunshine Hospital and Mediciti Hospitals; (xi) the plaintiff has also learnt of the applications filed by the defendant in June July, 2015