Trademark Dispute: Physician Or Chemist May Get Confused Due To Common Suffix- Delhi HC In ‘Mankind’ V. ‘Novakind’ Case
The Delhi High Court in a trademark case filed by Mankind Pharma Limited against Novakind Bio Sciences Private Limited has observed that the physician or chemist may get confused due to common ‘KIND’ suffix.
A Single Bench of Justice C. Hari Shankar said, “… without meaning either to extol the plaintiff or denigrate the defendant, a physician, or dispensing chemist, who finds drugs manufactured by the plaintiff especially effective, may prefer them, but may get confused into believing the drugs manufactured by the defendant to be those of the plaintiff, owing to the common “KIND” suffix.”
The Bench added that at the end of the day, the guiding principle is that, where medicines are concerned, even the slightest possibility of confusion cannot be permitted, and that, therefore, drugs – especially prescription drugs – must be clearly distinguishable from one another.
Senior Advocate Amit Sibal with Advocate Hemant Daswai appeared for the plaintiff (Mankind) while Advocate Sushant Mahapatra appeared for the defendant (Novakind).
In this case, the plaintiff was the fifth largest pharmaceutical company of India and it Chairman and founder adopted the trademark ‘MANKIND’ as part of the trading style in 1986. The plaintiff used “KIND” as second part of the name of various pharmaceutical preparations which the plaintiff manufactured and sold. The plaintiff was aggrieved by the mark NOVAKIND BIO SCIENCES PRIVATE LIMITED, used by the defendant for various pharmaceutical products manufactured and sold by it.
A cease-and-desist notice was issued by the plaintiff to the defendant calling upon it to desist using the mark ‘NOVAKIND’ as in the perception of the plaintiff, the said mark, by including “KIND” as the second part of the word “NOVAKIND” infringed the its registered trademark. It was in these circumstances that the plaintiff approached the High Court by means of the suit, seeking a permanent injunction restraining the defendant from using “KIND” as a part of the trade name/trademark under which the defendant manufactured and sold any of its medicinal and pharmaceutical preparations.
The High Court in the above context noted, “The “KIND” suffix not being endemic to pharmaceutical preparations, there is every likelihood of a customer of average intelligence and imperfect recollection, who chances across the defendant’s “NOVAKIND” product, to believe it to be one of the KIND family of the marks belonging to the plaintiff.”
The Court said that such likelihood of association is statutorily sufficient to constitute the infringement within the meaning of Section 29(2)(b)10 of the Trade Marks Act, inasmuch as the two marks are deceptively similar and they are used for identical goods.
“The poor, and those who are unable to afford the services of the more upmarket physician, often people these “clinics”. Many of these “doctors” prescribe medicines based on their manufacturer. Again, it is a well known fact that the same drug, when manufactured by different companies, may work differently, and that, at the very least, with different degrees of efficacy”, also observed the Court.
Accordingly, the High Court held that the marks of the plaintiff and the defendant are deceptively similar.
Cause Title- Mankind Pharma Limited v. Novakind Bio Sciences Private Limited (Neutral Citation: 2023:DHC:5653)
