Introduction: This appeal before the Hon’ble High Court of Delhi arises from a suit for trademark and design infringement, passing off, and damages, decreed ex parte by the Commercial Court in favour of the plaintiff, Pneumo Care Health Pvt. Ltd. The suit alleged unauthorized use of trademarks and design by former employees in collusion with Oxygun Health Pvt. Ltd., seeking to replicate Pneumo Care’s products. The Commercial Court passed a decree under Order VIII Rule 10 CPC owing to failure of the defendants to file a written statement within the statutory period. The appeal in RFA(COMM) 271/2025 challenged the decree on procedural and substantive grounds.
Detailed Factual Background:Pneumo Care Health Pvt. Ltd. claimed to be a leading medical device manufacturer specializing in critical care and orthopaedic products. It alleged that it had been commercially using the trademarks “HOSPIGRIP” and “HOSPICUFF” since 2016, registered under Class 10 of the Trade Marks Act, 1999. Pneumo Care also owned a registered design bearing No. 325003-001 concerning the surface pattern of ankle and wrist restrainers under the Designs Act, 2000.
Oxygun Health Pvt. Ltd. was incorporated in 2020. Two of its directors were previously associated with Pneumo Care—one as a general manager and the other terminated in 2022. Pneumo Care alleged that Oxygun, with insider knowledge, replicated its trademarks and designs to manufacture and sell similar products. Comparative images, packaging descriptions, branding, and technical specifications were provided to show the alleged similarities. Pneumo Care asserted the defendants deliberately passed off their products as those of the plaintiff, infringing upon registered intellectual property and undermining brand value.
Detailed Procedural Background: Pneumo Care instituted CS (Comm) 523/2023 before the Commercial Court, Rohini. Summons were served on 08 August 2023. Oxygun and co-defendants filed their written statement on 01 February 2024, which was over 120 days from the date of service. This was in violation of the mandatory timeline under Order VIII Rule 1 CPC, as amended by the Commercial Courts Act, 2015. Citing the Supreme Court decision in SCG Contracts India Pvt. Ltd. v. K.S. Chamankar Infrastructure Pvt. Ltd., (2019) 12 SCC 210, the Commercial Court struck off the written statement.
The defendants' challenge to this order in CM(M)-IPD 23/2024 was dismissed for non-prosecution on 28 November 2024. No further remedy was pursued. Consequently, the Commercial Court proceeded to adjudicate the suit under Order VIII Rule 10 CPC, and by judgment dated 05 November 2024, passed a decree of permanent injunction, damages of ₹3 lakhs, and other ancillary reliefs. This judgment was challenged in RFA(COMM) 271/2025.
Issues Involved in the Case: Whether a decree passed under Order VIII Rule 10 CPC in the absence of a written statement could be challenged on grounds of non-user of trademark?Whether the Commercial Court erred in passing an ex parte decree of injunction and damages without calling for additional evidence?
Detailed Submission of Parties: Counsel for the appellants argued that the trademark “HOSPIGRIP” had fallen into disuse, rendering the infringement claim untenable. It was further argued that Pneumo Care had failed to demonstrate any actual loss or damage, hence damages awarded were speculative. They also contended that Appellants 4 and 5 were wrongly implicated without proof of independent infringement.
On the other hand, counsel for Pneumo Care contended that the defendants were barred from raising any defense, including that of non-user, owing to their written statement having been struck off. The appeal was termed procedurally incompetent and factually devoid of merit. It was argued that the decree was based on comparative analysis, undisputed registration certificates, sales figures, and the Local Commissioner’s unchallenged report.
Detailed Discussion on Judgments Cited:
The Commercial Court and the Appellate Court relied extensively on SCG Contracts India Pvt. Ltd. v. K.S. Chamankar Infrastructure Pvt. Ltd., (2019) 12 SCC 210, where the Supreme Court held that in commercial suits, a written statement not filed within 120 days of service cannot be taken on record. This principle was dispositive of the procedural default in this case.
In Balraj Taneja v. Sunil Madan, (1999) 8 SCC 396, the Supreme Court held that even under Order VIII Rule 10 CPC, courts must ensure the plaintiff’s case is prima facie established before passing judgment. This was followed by reference to Asma Lateef v. Shabbir Ahmad, (2024) 4 SCC 696, which similarly emphasized that judgment by default must be grounded in evidence.
Delhi High Court judgments in Nirog Pharma Pvt. Ltd. v. Umesh Gupta, 2016 SCC OnLine Del 5961, Parsvnath Developers Ltd. v. Vikram Khosla, and Kleenoil Filtration India Pvt. Ltd. v. Udit Khatri, 2023 SCC OnLine Del 18 reiterated that decree under Order VIII Rule 10 CPC is proper if the claim is prima facie unchallenged and defendants choose not to contest.
On damages, the Commercial Court relied on Koninklijke Philips v. Amazestore, 260 (2019) DLT 135 and Rule 20 of the Delhi High Court IPD Rules, 2022, to quantify ₹3 lakhs as appropriate statutory damages despite lack of specific financial loss. This was deemed proportionate, considering willful infringement and unchallenged LC report.
The defense of trademark abandonment due to non-use was rejected citing Midas Hygiene Industries (P) Ltd. v. Sudhir Bhatia, (2004) 3 SCC 90 and Renaissance Hotel Holdings Inc. v. B. Vijaya Sai, (2022) 5 SCC 1, where the Supreme Court affirmed that statutory rights of a registered proprietor exist irrespective of actual use unless removed under Section 47 of the Trade Marks Act. The court held that unless registration is cancelled, non-user is irrelevant to a claim of infringement.
Detailed Reasoning and Analysis of Judge: The Court held that the appellants’ procedural conduct resulted in forfeiture of their right to defense, making any substantive challenge untenable. The decision to proceed under Order VIII Rule 10 CPC was legally sound. The appellants had full opportunity to participate but consciously defaulted.
The allegation of non-user was deemed an evidentiary issue requiring proof through pleadings and affidavits, which the appellants failed to file. The registered trademarks were valid and subsisting. The court noted the difference between statutorily invalid marks (via rectification under Section 47) and a defense based merely on oral argument in appeal.
The Court found that the Local Commissioner’s report, along with uncontroverted pleadings, comparative tabulation, and sales turnover data, justified the grant of permanent injunction. Further, the IPD Rules empowered the court to award reasonable damages based on mala fide infringement. The defendants’ conduct was found to be deliberate and dishonest, invoking principles of unjust enrichment and unfair competition.
The Court clarified that registered rights cannot be collaterally challenged in appeal on factual assertions not made before the trial court. The procedural default foreclosed such arguments.
Final Decision: The High Court dismissed the appeal, upheld the Commercial Court’s decree, and affirmed the award of damages and costs. It reiterated that procedural indiscipline in commercial litigation attracts strict consequences and that intellectual property rights enjoy robust protection, especially where unrefuted infringement is established.
Law Settled in this Case: A written statement filed beyond 120 days in a commercial suit cannot be taken on record. Procedural deadlines under the Commercial Courts Act are strict and final. A defendant cannot raise factual defenses in appeal which were never pleaded or proven before the trial court due to procedural default. Non-use of a registered trademark cannot be pleaded as a defense in an infringement action unless the mark is first removed through proceedings under Section 47 of the Trade Marks Act. Decrees under Order VIII Rule 10 CPC must be based on un controverted, prima facie credible pleadings and documentary evidence. Courts may award statutory damages under IPD Rules and judicial precedents, even in the absence of quantified actual losses, when mala fide infringement is established.
Case Title: Oxygun Health Pvt. Ltd. & Ors. Vs. Pneumo Care Health Pvt. Ltd. & Anr.:Date of Order: 13 May 2025:Case No.: RFA(COMM) 271/2025:Neutral Citation: 2025:DHC:3897-DB:Name of Court: High Court of Delhi:Name of Judge(s): Hon’ble Mr. Justice C. Hari Shankar and Hon’ble Mr. Justice Ajay Digpaul
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Written By: Advocate Ajay Amitabh Suman, IP Adjutor [Patent and Trademark Attorney], High Court of Delhi
