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Sun Pharma Laboratories Limited vs. BDR Pharmaceuticals International Pvt. Ltd. & Anr. - (High Court of Delhi) (05 Jun 2020)

Courts have to adopt a stricter approach regarding trademarks in the case of medicinal products as it may have adverse consequences on the health and life of the individual

MANU/DE/1148/2020

Intellectual Property Rights

Present suit is filed by the Plaintiff seeking a decree of permanent injunction to restrain the Defendants etc. from manufacturing, marketing, selling, offering for sale, advertising, directly or indirectly dealing in medicinal preparations under the impugned mark “LULIBET” or any other mark that may be visually, structurally or phonetically deceptively similar to the Plaintiff’s trademark “LABEBET” amounting to infringement of registered trademark of the plaintiff. Other connected reliefs are also sought.

The Plaintiff’s trade mark is “LABEBET” whereas the trade mark of the Defendant is “LULIBET”. The marks have to be compared as a whole. They have to be judged by their look and their sound. The nature of customers who are likely to buy the goods has also to be considered in my opinion. If the two marks are compared as a whole the mark of the defendant is phonetically, visually and structurally, similar to that of the plaintiff. A person of average intelligence and imperfect recollection is likely to be deceived or confused.

That apart as noted by the Supreme Court in Cadila Health Care Limited vs. Cadila Pharmaceuticals Ltd. where the medicinal products are involved, the test to be applied would be stricter than should be applied for non medicinal products. In the case of non medicinal products, a confusion only creates economic loss but in the case of medicinal products, it may have adverse consequences on the health and life of the individual. The fact that the Plaintiff did not oppose the application of the Defendant before the Trademark Registry does not mean that the Defendant can continue to violate the trademark of the Plaintiff.

It may be true that the fact that the Plaintiff’s drug is sold in the form of tablet/injectable form and the defendant’s drug is sold through lotion/cream. However, it cannot be ignored that both the drugs are sold through a common retail shops. Further the similarity of the marks cannot completely rule the possibility of deception or confusion. As medicinal products are involved, present Court would have to adopt a stricter approach.

The trademark of the Defendant is phonetically, structurally and visually similar to the trademark of the plaintiff and this is likely to create confusion. In the facts of the case, the possibility of deception or confusion being caused to a unwary purchaser of average intelligence and imperfect recollection cannot be ruled out.

The plea raised by the learned senior counsel for Defendant was that there was a delay in filing of the present injunction application. The product of the Defendant was launched in July, 2016, but the present application was filed in November, 2017. It is pleaded that hence the Plaintiff is guilty of delay and laches. Hence, even if there was delay on the part of the plaintiff in filing of the present suit as has been claimed by the defendant, the same delay would not be sufficient to deter grant of injunction in favour of plaintiff.

No grounds are made out for refusing an injunction to the plaintiff. A decree of injunction is passed in favour of the Plaintiff and against the defendant restraining the Defendant’s agents, dealers etc. from using the said trademark LULIBET or any other mark that is phonetically, structurally or visually similar to the Plaintiff’s trademark LABEBET. The Plaintiff shall also be entitled to costs. The decree of permanent injunction shall be effective after two months. This period is being granted to enable the defendants to take appropriate remedial measures. Suit stands disposed of.

Tags : TRADEMARK   INJUNCTION   GRANT  

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