India: Average Intelligence & Imperfect Recollection of a Customer - Criterion Determining Passing-Off

Last Updated: 18 May 2006
Article by Manisha Singh Nair

The Supreme Court has expressed and rightly so in Cadila Health Care Ltd. versus Cadila Pharmaceuticals Ltd. (2001) SC that while dealing with cases in relation to passing off, one of the important tests which has to be applied in each case is whether the misrepresentation made by the defendant is of such a nature as is likely to cause an ordinary consumer to confuse one product for another due to similarity of marks and other surrounding factors but when medicinal products are involved, the test to be applied for adjudging the violation of trade mark law may not be at par with cases involving non-medicinal products. A stricter approach should be adopted while applying the test to judge the possibility of confusion of one medicinal product for another by the consumer because there may be a possibility that the consumer is an unwary purchaser of average intelligence and imperfect recollection who may have absolutely no knowledge of English language or of the language in which the trade mark is written and to whom different words with slight difference in spellings may sound phonetically the same. While confusion in the case of non-medicinal products may only cause economic loss to the plaintiff, confusion between the two medicinal products may have disastrous effects on health and in some cases life itself.

The ultimate purchaser of the goods is more important than the manufacturers or traders because it is the person who looks at the mark in the ordinary way has to be considered. A purchaser cannot retain in his mind every detail of the mark which he has once seen. Thus in determining the probability of confusion on the question of similarity between two trademarks, due allowance must be made to approach the problem from the point of view of a man of average intelligence and of imperfect recollection. This is the point made by Delhi High Court in a recent case between Dr. Reckeweg And Company versus Lord's Homeopathic Lab Private Limited.

The plaintiff and defendant both are in the manufacture and marketing of homeopathic medicines. The plaintiff markets the medicines under the R-series derived from his name Dr. Reckeweg. These are marketed and sold as drops in the alphanumeric series R-1 to R-75. The defendant also markets his medicines as drops in the alphanumeric series L-1 to L-75. The dispute according to the plaintiffs’ contention is that the defendant is infringing the copyright of the plaintiff in the catalogue and literature pertaining to its homeopathic medicines and also from using the alphanumeric series L-1 to L-75 in respect of homeopathic medicines. The latter grievance arises because, according to the plaintiff, he had been using the alphanumeric series R-1 to R-75 for several years and by using the alphanumeric series L-1 to L-75, the defendant is trying to pass off its homeopathic medicines as those of the Plaintiff. Further the medicines in the alphanumeric series L-1 to L-75 adopted by the defendant represent the same medicines as those of the Plaintiffs in the alphanumeric series R-1 to R-75. This alphanumeric combination, read with the catalogue, is enough to mislead the public consuming homeopathic medicines and it would certainly not be appropriate if unwary consumers are misled by the products of the defendant, which are in essence the products of the plaintiff.

The Court taking the Cadila case as a precedent in respect that the point of view of the consumer is of primary concern. In this respect he cannot afford to be misled in the purchase of the medicine for the treatment of a particular ailment. The Court held that what the defendant is essentially doing is selling the medicines of the plaintiff, though in a different carton and with a different alphanumeric series.

The Court reasoned that obviously the plaintiff cannot have a copyright on the numerals or the alphabets individually or even collectively but when the alphanumeric combination is used for a medicine which cures an ailment, and a similar alphanumeric combination is used for another medicine which also cures a substantially similar ailment, and if the alphanumeric combination and substantial similarity in the ailment persist for medicine after medicine and for ailment after ailment and in the same sequence, then it is just not possible to entertain a belief that a coincidence has occurred. Had there been a harmonized system of classification, then the defendants might have been able to make out an arguable point. Since the entire "R series", ailment by ailment and medicine by medicine has been substantially copied or adapted by the defendants in their catalogue displaying the "L series", the intention of the defendant is obviously to plagiarize the work of the plaintiff, which he has done, and this indicates a dishonest intention on their part.

Thus the Court applying the test of average intelligence and imperfect recollection of the customers to the facts of the case held that by using the alphanumeric 'L series' in place of the 'R series' of the plaintiff, the defendant is passing off his medicines as those of the plaintiff.

© Lex Orbis 2006

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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