India: Man Of Average Intelligence- Scale For Determining Similarity

Last Updated: 18 May 2007
Article by Manisha Singh Nair

It has become a well-settled principle that while adjudicating deceptive similarity of medicinal products, the yardsticks adopted by the Courts are stringent. The Supreme Court of India in Cadila Health Care Ltd. v. Cadila Pharmaceuticals Ltd., AIR 2001 SC 1952, laid down the general guidelines that are to be adopted while adjudicating deceptive similarity in medicinal products. Guided by the principles set by the Supreme Court, the Intellectual Property Appellate Board [IPAB] under the Indian Trade Mark Laws, in Sami Khatib v. Optho Remedies Pvt. Ltd & Anr. 2007 (34) PTC 357 reiterated the same.

Optho Remedies/Respondent had filed an application for registration of Mark B-Tone in respect of medicinal and pharmaceutical preparation in 1986 and claimed usage since 1977. Upon advertisement of the mark in the Trademarks Journal, Sami Khatiab/Appellants filed opposition and produced a registration certificate for the Mark R.B. Tone registered in 1972. Optho Remedies filed reply evidence in support of their application. The Assistant Registrar heard the matter and disallowed the opposition on the ground that Optho Remedies is a honest and concurrent user and adequately satisfied the requirement under the Trade Mark Laws. The Assistant Registrar also observed that the marks are not similar and the long use of nine years justified the claim to be the proprietors of the mark in terms of section 18(1) of the Act. Aggrieved by the said order a review petition was filed by Sami Khatib. The Assistant Registrar dismissed the review petition, with the observation that no interlocutory petition shall be maintainable after completion of hearing in the eyes of law. Aggrieved by both the orders of the Registrar, an appeal was preferred to the Delhi High Court, which was transferred to IPAB by virtue of Section 100 of the Trademarks Act, 1999.

Sami Khatib contended that they had adopted two marks viz R.B.Tone in 1972 and ARBITONE in 1969 and had been continuously using it without interruption. They further contented that the Assistant Registrar had not considered the fact that Sami Khatib is prior in registering the mark. Further a catena of cases were placed contending that the Assistant Registrar erred in dismissing the review petition.

Optho Remedies contented that registration of the mark B-TONE was not violative of any provisions of the Act, and Section 12(3) of the Act, entitles them to be honest and concurrent user. They further placed reliance on the Apex Court ruling in Cadila Laboratories Ltd v. Dabur India Ltd for contending that weightage should be given prefix of a word if suffix is common.

The IPAB on the question whether the marks are identical or similar, observed that R. B. Tone and B-Tone are identical except for the first letter ‘R’. Further there is no difference between the marks when placed next to each other. The letter ‘R’ is silent at time when the mark is pronounced and hence it is phonetically similar also. The Board concluded that the mark is identical and similar. The Board on considering the factors for determining similarity observed that substantial caution has to be exercised while adjudicating the question of similarity in medicinal products. While deception in non-medicinal products would result only in financial losses, deception in medicinal products would have disastrous effect. Guided by these principles, the Board ruled that even a remote possibility of confusion is to be ruled out in medicinal cases. Further the Board reiterated that the issue of confusion should be adjudged from the point of view of a man of average intelligence and imperfect recollection. The Board concluded that except for the letter ‘R’ the marks are identical and there is every possibility of confusion and hence the appeal is allowed and rejected the application for registration of the mark.

While adjudicating deceptive similarity in trademark cases, Courts usually adopts subjective criteria, but the set precedent is that the Court adopts stringent barometer while adjudicating similarity in medicinal products, and also approaches from the viewpoint of man of average intelligence and imperfect recollection.

© Lex Orbis 2007

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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