In two separate proceeding, Merck KGA successfully brought permanent injunction against LA LIFESCIENCE and EMIL PHARMACEUTICAL for trademark infringement “EXFLAM/EMFLAM” and “COSOME” respectively.
Plaintiff had filed the present suit for permanent injunction restraining infringement of trademark and rendition of accounts, damages and delivery up, etc. against the defendant in the High Court of Delhi. Judge Mr. S.P.GARG handed down these two decisions.
“EXFLAM” and “EMFLAM” are under registration Nos. 471455 & 467598. It is pleaded that the defendant is engaged in the manufacture and sale of pharmaceutical and medicinal preparations and had adopted the trademark “LAFLAM” with respect to its medicinal preparations.
“COSOME” is under trademark registration No. 147029. It is pleaded that the defendant is also engaged in the manufacture and sale of pharmaceutical and medicinal preparations and had adopted the trademark “COZOLE” with respect to its medicinal preparations.
While delivering the decision in theses 2 cases, court considered “whether rival marks are deceptively similar and are likely to cause confusion in the mind of unawary purchasers. The purchasers are not expected to be well-versed with the chemical compositions of the medicinal preparations. It is well settled that while considering whether a mark is likely to deceive or to cause confusion, the question has to be approached from the point of view of a man of average intelligence and imperfect recollection”.
Also court said – citing ‘Cadila Health Care Ltd. v. Cadila Pharmaceuticals Ltd.’, 2001 (5) SCC 73, the Supreme Court after considering a large number of judgments of Foreign Courts and Indian Courts cautioned that strict measures to prevent confusion and lesser degree of proof is required for a Plaintiff to prove infringement in pharmaceutical cases if the marks are similar.
Finally court concluded that in these instant cases, the defendant’s mark in respect of medical preparations is phonetically and visibly similar to the registered trademark of the plaintiffs. It is, therefore, evident that the defendant has infringed the registered trademark of the plaintiffs’ and has passed of his goods as those of the plaintiffs.