O R D E R

% 05.08.2024 I.A. 35448/2024 (Order VI rule 17, CPC)

1. By virtue of the present application under Order VI Rule 17 of the Code of the Civil Procedure, 1908, the plaintiff is seeking amendment of the plaint.

2. The amendment is sought pursuant to the commission executed in compliance of order dated 06.05.2024, wherein new mark i.e. ACTIPLUS/ being used by the defendant came to the knowledge of the plaintiff.

3. Issue notice.

4. Learned counsel for the defendant appearing on advance notice, accepts notice and, without going into the merits of the matter, submits that he has no objection if the present application is allowed.

5. Based on the averments and the pictorial depictions in the present application, the new mark ACTIPLUS/ of the defendant is also similar to the earlier impugned marks Active/

CS(COMM) 367/2024 Page 1 of 7 , , of the same defendant, qua which, this Court has already granted an ad interim injunction vide order dated 06.05.2024.

6. In view of the aforesaid and for the reasons stated in the present application and since there is no objeciton from the defendant, the present application is allowed and disposed of.

I.A. 35449/2024 (Order XXXIX rule 1 & 2, CPC)

7. By virtue of the present application, the plaintiff seeks injunction against the defendant’s new mark ACTIPLUS/ in extension to the order dated 06.05.2024 already passed by this Court.

8. Learned counsel for the plaintiff contends that vide order dated 06.05.2024, this Court had granted an ex-parte ad-interim injunction in its favour and also appointed a Local Commissioner and it is the same Local Commissioner, who at the time of execution of the commission discovered that in addition to the marks for which the defendant was injuncted vide the said order, the defendant was also using the mark ACTIPLUS/ .

9. It is further contended that since similar relief(s) sought by the plaintiff qua the earlier impugned marks Active/ , CS(COMM) 367/2024 Page 2 of 7 , of the defendant has already been granted by this Court vide order dated 06.05.2024 and since the present mark ACTIPLUS/ of the defendant is also similar to those marks, this Court may grant similar relief(s) qua the new mark.

10. Issue notice.

11. Learned counsel for the defendant appearing on advance notice, accepts notice and primarily submits that the mark ACTIPLUS/ has no connection to the trademarks of the plaintff and/ or qua which the defendant was injuncted vide order dated 06.05.2024. It is further submitted that since the aforesaid mark is derived from common Engilsh words, the plaintff cannot seek to restrain the defenant from using the same.

12. This Court has heard the learned counsel for the parties and perused the documents on record.

13. Admitedly, the defendant has not disputed the adoption of the impugned mark ACTIPLUS/ by it. Also, the defendant has been unable to show any fundamental and/ or otherwise any basis of such adoption and subsequent usage by it.

CS(COMM) 367/2024 Page 3 of 7

14. Prime facie, the mark ACTIPLUS/ of the defendant is merely derivatives/ replacements of the earlier marks Active/ , , of the defendant qua which it has already been injuncted vide order dated 06.05.2024. The mark ACTIPLUS/ has no individual identity of its own.

15. Moreover, since the mark ACTIPLUS/ is almost identically similar to that of the trademarks , , of the plaintiff and since the parties are engaged in the same line of business who are operating in/ using the similar and common trade channels and having the same set of targeted consumer base, the CS(COMM) 367/2024 Page 4 of 7 likelihood of confusion and misrepresentation from the side of the defendant can be more. Furthermore, the plaintiff is the prior adopter/ user of the trademarks , .

16. In view of the aforesaid, prima-facie this Court is of the opinion that the mark ACTPLUS/ is similar to those of the registered trademarks of the plaintiff and they are of the same nature as the earlier marks of the defendant for which this Court vide order dat