The judgment establishes the principle that phonetic similarity between trademarks can constitute infringement, and lack of a credible defense can lead to summary judgment in trademark cases.

JUDGMENT (Oral)

CS(COMM) 665/2021 & IA 6517/2023 (Order XIII-A, Rule 3 & 6(1)(A) read with Section 151 of the CPC)

1. So stark a case of infringement and passing off is the present, that this Court does not find it surprising that the defendants ultimately chose not to continue to prosecute their defence against the suit.

2. The plaintiff manufactures and sells rosuvastatin tablets, for treating of high cholesterol levels, under its registered trademark 'ROSEDAY'. The defendants also manufacture and sell rosuvastatin tablets under the brand name 'ROSUDAY'. The plaintiff seeks, therefore, by the present suit, an injunction against the defendants from using the impugned mark 'ROSUDAY'. The defendant had applied for registration of its 'ROSUDAY' trademark, but it does not appear that it has succeeded in securing registration as the Registry, citing the plaintiff's ROSEDAY trademark, objected to the defendants' application under Section 11(1)^{1[11. Relative grounds for refusal of registration. -(1) Save as provided in Section 12, a trade mark shall not be registered if, because of-- (a) its identity with an earlier trade mark and similarity of goods or services covered by the trade mark; or (b) its similarity to an earlier trade mark and the identity or similarity of the goods or services covered by the trade mark,there exists a likelihood of confusion on the part of the public, which includes the likelihood of association with the earlier trade mark.]} of the Trademarks Act, 1999.

3. The suit was accompanied by IA 16858/2021, seeking interlocutory injunctive relief under Order XXXIX Rules 1 and 2 of the Code of Civil Procedure, 1908 (CPC).

4. Summons were issued in the suit and an ex parte ad interim injunction, restraining the defendants from using the impugned ROSUDAY trademark, was granted by this Court on 16 December 2021. Defendant 1 did not file any written statement in response to the suit, or reply to IA 16858/2021, and its right to file written statement was closed on 5 August 2022. Defendant 2 filed a written statement with an application for condonation of delay. On 8 December 2022, this Court dismissed the application for condonation of delay and struck the written statement off the record. That decision has remained unchallenged. There is, therefore, no written statement on record either by Defendant 1 or by Defendant 2.

5. Defendant 2 did, however, file a reply to IA 16858/2021.

6. The defendants have remained absent after 15 December 2022, though the case was listed four times. Notice was issued to learned Counsel for the defendants at their addresses as well as by email and by WhatsApp, there is, however, no appearance on their behalf.

7. In these circumstances, the plaintiff has moved IA 6517/2023 under Order XIII-A Rule 3^{2[3. Grounds for summary judgment. - The court may give a summary judgment against a plaintiff or defendant on a claim if it considers that -(a) the plaintiff has no real prospect of succeeding on the claim or the defendant has no real prospect of successfully defending the claim, as the case may be; and(b) there is no other compelling reason why the claim should not be disposed of before recording of oral evidence.]} & 6(1)(A) read with Section 151 of the CPC, as amended by the Commercial Courts Act 2015, submitting that the defendants have no credible defence to offer and, therefore, seeking summary judgment in the suit. Notice on the present application was issued by this Court on 10 April 2023. Over 30 days since then have passed, as stipulated in Order XIIIA Rule 1(3) of the CPC, no reply is forthcoming.

8. Where the defendant has no real prospect of successfully defending the claim set up by the plaintiff, and there is no other compelling reason why the claim should not be disposed of without recording oral evidence, the Court may, under Order XIII-A Rule 3 of the CPC, give a summary judgment against the defendant. Expeditious disposal of commercial claims is the very raison d'jtr