Emcure Pharmaceuticals Limited vs Emsure Pharmaceutical Private Limited

This suit is instituted by the Plaintiff inter alia seeking decree of permanent injunction restraining the Defendant from infringing Plaintiff’s trademark as also passing off.

Plaintiff was incorporated in 1981 in India and as stated in the plaint, it is one of world’s leading pharmaceutical companies in the world, offering wide range of products and services in various categories, including Gynaecology, Cardiology, Oncology etc. and is a pioneer in the healthcare segment in India. Plaintiff’s products and services range from pharmaceuticals, healthcare products, healthcare services, over-the-counter products, nutraceuticals etc. It is stated in the plaint that in 1979, Plaintiff honestly and bona fidely conceived and adopted the trademark EMCURE, which was also contemporaneously adopted as its trade name/corporate name. Since its adoption, Plaintiff has used the trademark/trade name/ corporate name EMCURE openly, extensively, continuously and uninterruptedly in the course of trade and has acquired formidable goodwill and reputation. The trademark is inherently distinctive and deserves the highest level of protection under the trademarks law. In order to safeguard its rights and further the goodwill, Plaintiff has obtained registrations in the trademark EMCURE in several classes as follows and the registrations are valid and subsisting:-

It is stated that the registrations give exclusive right to the Plaintiff to use the registered trademark and its formative marks in relation to the goods and services for which they are registered as also to restrain third parties from infringing the marks. Further, Plaintiff enjoys common law rights in the trademark EMCURE on account of long and continuous use since adoption. Apart from India, Plaintiff’s trademark EMCURE is also registered in various other jurisdictions worldwide such as in Egypt, Europe, Mauritius, Switzerland, USA, UAE, Brazil etc. Plaintiff has 13 subsidiary companies across the world as detailed in paragraph 30 of the plaint. Plaintiff operates and maintains the website ‘www.emcure.com’, which provides comprehensive information about the Plaintiff and its diversified businesses.

It is stated that Plaintiff has extensive social media presence across Instagram, YouTube etc., and its goodwill and reputation is reflected from its sales turnover, which illustratively has increased from Rs. 807.23 crores in 2014-2015 to Rs. 1525.01 crores in 2023-2024, as per Chartered Accountants’ certificate. Plaintiff has expended crores of rupees towards promotion and as detailed in the plaint, in Financial Year 2014-2015, the promotional expenses were to the tune of Rs. 91.41 crores, which significantly increased to Rs. 139.94 crores in 2023-2024. Plaintiff has received numerous awards recognizing its contribution to pharmaceutical industry and patient care as also for innovative marketing campaigns, drug development and commitment to healthcare initiatives. The awards include: Silver Impact Award; Golden Impact Award; New Introduction of the Year-Chronic/Sub-Chronic Silver Award; Best API Patents Award; and Best Indian Patents Award.

It is stated that Defendant has adopted a deceptively similar/nearly identical trademark EMSURE for identical services/goods i.e., pharmaceuticals and is blatantly selling its products and gaining undue monetary benefits by infringing Plaintiff’s registered trademark and passing off its goods, riding upon the immense goodwill and reputation that Plaintiff has earned over the years. In order to protect its statutory and common law rights, Plaintiff approached this Court and filed the present suit.

By detailed order dated 27.05.2025, Court granted ex parte ad interim injunction in favour of the Plaintiff and restrained the Defendant and all others acting on its behalf from manufacturing, marketing, selling, distributing, offering for sale, advertising or promoting products under the impugned trademark/trade name EMSURE/EMSURE PHARMACEUTICAL PRIVATE LIMITED or any other trademark identically/deceptively similar to Plaintiff’s trademark EMCURE, either as a trademark/trade name/domain name/social media handle or in any other manner whatsoever and also issued summons to the Defendant. The matter was listed before the learned Joint Registrar on 01.08.2025 for completion of service and pleadings.

Order dated 01.08.2025 reflects that as per affidavit of service filed by the Plaintiff, Defendant was served on 05.06.2025 through Speed Post. However, there was no appearance on behalf of the Defendant and matter was placed before Court for 14.10.2025 for further directions. None appeared for the Defendant on 14.10.2025 and accordingly, Defendant was set ex parte by the Court and the matter was directed to be listed on 13.01.2026 for consideration.

None appeared for Defendant on the first call and none appears on the second call. No steps have been taken on behalf of the Defendant either to join proceedings or to have the ex parte order set aside. In these circumstances, counsel for the Plaintiff prays for a decree for injunction under Order 8 Rule 10 CPC as no written statement has been filed by the Defendant. On instructions, learned counsel submits that Plaintiff is willing to give up the claim for damages and rendition of accounts and only requests that costs involved in the litigation be granted to the Plaintiff.

Heard learned counsel for the Plaintiff.

From the averments in the plaint and the documents filed along with the plaint, both of which are uncontroverted since Defendant has chosen to abstain from the proceedings as also arguments of the learned counsel, it emerges that Plaintiff coined and adopted the trademark EMCURE as early as in 1979, which was contemporaneously adopted as its trade name/house name/corporate name and has been using the same in pharmaceutical sector, both internationally as well as in India. Details of registrations obtained by the Plaintiff in the EMCURE trademarks have been furnished in the plaint and have been extracted in the earlier part of this judgment. Plaintiff’s annual sales turnover in the Financial Year 2023-2024 is Rs. 1525.01 crores, as certified by the Chartered Accountants and the certificates have been filed along with the plaint along with several sales invoices. Plaintiff has incurred substantial expenses on promotion of trademark EMCURE and illustratively, the expenses incurred in Financial Year 2023-2024 are to the tune of Rs. 139.94 crores. Plaintiff is a recipient of several awards relating to excellence in pharmaceuticals, which is fortified by the documents filed with the plaint. Plaint is duly supported by the affidavit of authorised signatory of the Plaintiff and Statement of Truth.

Plaintiff states that Defendant has dishonestly adopted the impugned trademark EMSURE, which is visually and phonetically deceptively similar to Plaintiff’s registered trademark EMCURE and is using the same for identical/similar pharmaceutical goods, which amounts to infringment under under Section 29(1) of the Trade Marks Act, 1999 (‘1999 Act’). It is also urged that owing to deceptive similarity of the competing trademarks, used for selling identical/similar goods and common consumers as also trade channels, confusion is inevitable. It is clear that Defendant has dishonestly adopted the impugned trademark to ride on the formidable goodwill and reputation of the Plaintiff to misrepresent to the public/ consumers/members of the trade that its goods have some association with the Plaintiff. The actions of the Defendant amounts to passing off and are not only damaging the reputation of the Plaintiff but are also detrimental to public interest since the goods in question are pharmaceutical goods. It is also stated in the plaint that Defendant does not have registration in the impugned trademark EMSURE and while it had applied for registration of device mark , under Application No. 5824288 filed on 25.02.2023 on ‘proposed to be used’ basis, however, the application was withdrawn vide letter dated 14.04.2023.

On careful analysis, Court finds merit in the aforesaid submissions of the Plaintiff. First and foremost, it bears repetition to state that Defendant has chosen to stay away from the proceedings and has not filed written statement or affidavit of admission/denial of the documents filed by the Plaintiff. In this backdrop, Plaintiff presses for a decree under Order 8 Rule 10 CPC, which stipulates 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 the said party. It is trite that there must not be mechanical application of Order 8 Rule 10 CPC to pass a decree in favour of the Plaintiff on the basis of the plaint merely because Defendant has not filed the written statement and it is only when the Court is fully satisfied that there is no fact which needs to be proved that a judgment ought to be passed. [Ref.: C.N. Ramappa Gowda v. C.C. Chandregowda (dead) by LRs. and Another, (2012) 5 SCC 265 and Asma Lateef and Another v. Shabbir Ahmad and Others, (2024) 4 SCC 696].

Comparison of the rival marks shows that the impugned trademark EMSURE is visually and phonetically similar to Plaintiff’s registered trademark EMCURE and its formatives and there is similarity/identity of the pharmaceutical goods sold under the competing trademarks. Section 29(1) provides that a registered trademark is infringed by a person, who not being a registered proprietor or a person using by way of permitted use, uses in the course of trade, a mark which is identical with or deceptively similar to, the trademark in relation to goods or services in respect of which the trademark is registered and in such manner as to render the use of the mark likely to be taken as being used as a trademark. Section 29(2) provides that a registered trademark is infringed by a person who, not being a registered proprietor or a permitted user, uses in the course of trade, a mark which because of: (a) its identity with the registered trademark and similarity of goods/services covered by such registered trademark; or (b) its similarity with registered trademark and identity/similarity of goods/services covered by such registered trademark; or (c) its identity with the registered trademark and identity of goods/services, is likely to cause confusion. In the instant case, the impugned mark EMSURE is deceptively similar to Plaintiff’s mark EMCURE and use of alphabet ‘S’ in place of ‘C’ cannot aid the Defendant. The rival goods are similar/identical and confusion is inevitable. Consequently, Plaintiff has established that the Defendant is infringing its registered trademark EMCURE.

It is also clear that Defendant has attempted to ride on the immense goodwill and reputation enjoyed by the Plaintiff, which is evident from its sales turnover, year by year promotional expenses, awards received and social media presence. For ready reference, the screenshots of e-commerce website ‘IndiaMart’, where Defendant is offering to sell similar products under the impugned trademark are captured hereunder:-

Plaintiff is right that there is a strong likelihood that because of the similarity in the competing trademarks and goods in question, unwary consumers will be duped into buying the impugned products under the impugned trademark EMSURE, believing that they originate from the Plaintiff. This will be detrimental not only to Plaintiff’s goodwill and reputation but also to consumers and larger public interest considering that the goods in question are pharmaceutical products. The trade channels and consumers are identical and this will enhance the potential of confusion. In Cadila Health Care Ltd. v. Cadila Pharmaceuticals Ltd., (2001) 5 SCC 73, the Supreme Court observed that public interest would support lesser degree of proof showing confusing similarity in case of trademark in respect of medicinal products as against non-medicinal products. Drugs are poisons, not sweets. Confusion between medicinal products may, therefore, be life threatening, not merely inconvenient. Noting the frailty of human nature and pressures on doctors, there should be as many clear indicators as possible to distinguish two medicinal products from each other. In a nutshell, the Supreme Court held that the threshold of measuring confusion must be different in pharmaceutical products as compared to other products.

In the present case, Court is satisfied that there are no facts which can be disputed to give rise to two versions inasmuch as the impugned trademark has been adopted by the Defendant, which is evident from the screenshots of e-commerce website and the trademark EMSURE is phonetically and visually similar to Plaintiff’s trademark EMCURE. Registration certificates have been placed on record by the Plaintiff, which cannot be disputed. Goodwill and reputation of Plaintiff is evident from Chartered Accountants’ certificates and invoices and the averments in the plaint and documents are untraversed in the absence of written statement and affidavit of admission/denial of Plaintiff’s documents. In my view, this is a fit case for decreeing the suit under Order 8 Rule 10 CPC as the Court sees no real prospect of the Defendant succeeding even post-trial.

Accordingly, the present suit is decreed in favour of the Plaintiff and against the Defendant in terms of prayers made in paragraph No. 64(a), (b), (c) and (f) of the plaint.

As regards the relief of costs, pressed by the Plaintiff, considering the facts and circumstances of this case, Plaintiff is held entitled to recover the actual costs of these proceedings from the Defendant in terms of the Commercial Courts Act, 2015 and Delhi High Court (Original Side) Rules, 2018 (‘2018 Rules’) read with Delhi High Court Intellectual Property Division Rules, 2022. Plaintiff shall file its bill of costs in terms of Rule 5 of Chapter XXIII of 2018 Rules on or before 28.02.2026 and as and when the same is filed, matter will be listed before the Taxing Officer for computation of costs.

Registry is directed to draw up the decree sheet.

Suit is disposed of along with the pending application.