LI Network
Published on: 30 August 2023 at 09:30 IST
The Delhi High Court has affirmed that even the slightest chance of confusion should not be tolerated when it comes to labeling medicines.
The assertion was made while adjudicating on a case involving Mankind Pharma’s request for a permanent injunction against Novakind Bio Sciences’ use of the term ‘Kind’ in its pharmaceutical preparations.
Justice C Hari Shankar emphasized that the similarity between different medicines should be assessed from the perspective of an averagely intelligent consumer with an imperfect memory.
The judge also noted the unfortunate existence of poorly regulated pharmacies run by unqualified individuals in India.
The court had previously issued an interim injunction against Novakind on April 21, 2021. This year, Novakind sought to lift the injunction, contending that Mankind did not hold registration for the ‘Kind’ mark and could not claim exclusive control over it.
However, the court pointed out that Mankind had registered the ‘Mankind’ mark in all classes. It further noted that the phonetic and deceptive similarity between ‘Mankind’ and ‘Novakind’ was evident. As both marks shared the same suffix, the argument that Mankind lacked registration for the ‘Kind’ mark failed to persuade the court.
Given that the ‘KIND’ suffix is not exclusive to pharmaceutical preparations, there is a likelihood that an average consumer could associate Novakind’s product with the ‘KIND’ family of marks owned by Mankind.
The court underlined that the mere possibility of an association between the two marks in the mind of an average consumer is sufficient to establish trademark infringement.
The court was also unconvinced by Novakind’s assertion that medicines are prescribed and dispensed by competent individuals. Justice Shankar noted that even a qualified physician or chemist could be confused due to the shared ‘Kind’ suffix.
Ultimately, the guiding principle remains that in the context of medicines, even the smallest potential for confusion should be prohibited. Prescription drugs, in particular, must be easily distinguishable from one another. Consequently, the court upheld the interim injunction and dismissed Novakind’s application.