The Delhi High Court has dealt with a passing off action concerning pharmaceutical and nutraceutical products, where the plaintiffs alleged dishonest adoption by the defendants of a deceptively similar trade dress and mark in relation to multivitamins, iron tonics, syrups and antibiotics. The Court recorded the plaintiffs’ case that MAXIRICH had been adopted in 2003 for nutritional supplements, that rights in the mark had been transferred to Plaintiff No. 1 under a Business Transfer Agreement, and that the plaintiffs had also adopted distinctive packaging for their multivitamin products as well as used AZIMAX since 2005.
Accordingly, the Court restrained the defendants and all persons acting on their behalf, till the next date of hearing, from selling, offering for sale, marketing, promoting or advertising the impugned products under the impugned trade dress or any other deceptively similar trade dress.
A Single Judge Bench of Justice Jyoti Singh specifically observed that the rival products were multivitamin capsules and, more importantly, Azithromycin antibiotic tablets, and reiterated that confusion among consumers in pharmaceutical matters can be extremely detrimental, especially in relation to antibiotics.
The Bench further observed that the defendants had copied a nearly identical trade dress in terms of get-up, layout, colour combination, projectile-shaped boundary, and silhouette of a jumping man/woman on the packaging. Since the products were identical and the consumer base and trade channels were also common, the Bench found there was every likelihood of confusion.
The Bench recorded that the defendants were attempting to come as close as possible to the plaintiffs in order to encash upon the plaintiffs’ goodwill and reputation and pass off their goods as those of the plaintiffs. It also noted that such conduct was causing irreparable damage not only to the plaintiffs’ reputation and goodwill but that the confusion arising from near identity of trade dress and deceptively similar trademark would be extremely detrimental to public interest.
Briefly, the plaintiffs, Cipla Health Limited and another, sought interim injunctive relief in a commercial suit for passing off against Maxx Farmacia India LLP and others. The plaintiffs’ case was that the trademark MAXIRICH was honestly and bona fide adopted in 2003 for nutritional supplements, was fanciful and inherently distinctive, and that rights in the mark, together with goodwill, had thereafter been transferred to Plaintiff No. 1 under a Business Transfer Agreement. The plaintiffs also asserted adoption of a unique and distinctive trade dress for their multivitamin softgel capsules, with specific visual features including a projectile-shaped boundary and a red, maroon and black colour combination, and further relied on continuous use of the mark AZIMAX since 2005.
The plaintiffs further contended that Defendant No. 1 had obtained registrations in the impugned marks, including AZOMAXX, on a “proposed to be used” basis in 2015, and that the defendants were operating websites and social media handles through which they had mala fidely adopted a nearly identical trade dress with the intention of coming as close as possible to the plaintiffs’ products. The plaintiffs argued that the defendants’ products covered multivitamins, iron tonics, syrups and antibiotics, that the rival marks and trade dresses were nearly identical, and that the goods, trade channels and class of consumers were common. The plaintiffs also relied on their substantial reputation and goodwill in the mark MAXIRICH, including annual turnover figures and promotional expenditure.
Appearances:
Swathi Sukumar, Senior Advocate with Archana Sahadeva, Harshit B., Ritik Raghuvanshi, Rishika Aggarwal and Anshu Tulsyan, Advocates, for Plaintiffs
None, for Defendants