12 Aug 2023 7:10 AM GMT
Observing that the marks “Novakind” and “Mankind” are confusing when used for pharmaceutical preparations, the Delhi High Court has made absolute the interim injunction order against an entity manufacturing medicines using the suffix “Kind” till final disposal of a trademark infringement suit filed by Mankind Pharma. “The “KIND” suffix not being endemic to...
Observing that the marks “Novakind” and “Mankind” are confusing when used for pharmaceutical preparations, the Delhi High Court has made absolute the interim injunction order against an entity manufacturing medicines using the suffix “Kind” till final disposal of a trademark infringement suit filed by Mankind Pharma.
“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,” Justice C Hari Shankar observed.
The court said that there is a possibility of an impression of association between the two marks in the mind of customer of average intelligence and that imperfect recollection would exist.
“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 court said.
Justice Shankar was hearing a suit filed by Mankind Pharma Limited against Novakind Bio Sciencesi Private Limited alleging infringement of its registered trademark “Mankind”. A permanent injunction was sought against Novakind from using the mark “Kind” in manufacturing medicines.
On April 20, 2021, a coordinate bench had granted an ex parte ad interim injunction restraining Novakind from manufacturing any pharmaceutical product bearing “Kind” suffix or which may, in any other manner, infringe the registered trademark of Mankind.
Making the interim order absolute till disposal of the suit, the court observed that even the slightest possibility of confusion cannot be permitted where medicines are concerned and that drugs, especially prescription drugs, have to be clearly distinguishable from one another.
“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,” the court said.
It added, “Thus, 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.”
Case Title: MANKIND PHARMA LIMITED v. NOVAKIND BIO SCIENCES PRIVATE LIMITED
Citation: 2023 LiveLaw (Del) 677
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