IN THE HIGH COURT OF DELHI
HIMALAYA WELLNESS COMPANY & ORS. ..... Plaintiffs
v/s
WIPRO ENTERPRISES PRIVATE LIMITED ..... Defendant
2023 SCC OnLine Del 4035
Dated on 12th July 2023
FACTS OF THE CASE
The plaintiffs manufacture and sell an ayurvedic medicine for women, ‘EVECARE’ and ‘EVECARE FORTE’ which are registered trademarks under pharmaceutical class 5, and in use since 1998
The defendants manufacture and sell a cosmetic intimate wash for women a registered mark ‘EVECARE, in Class 3 and in use since 2021
The products of both are available for sale on common trade channels, such as chemist shops, online platforms like Amazon and online pharmacies
Both the products are ‘hush products’ pertaining to menstrual and reproductive health of women.
ISSUES BEFORE THE COURT
Are there any grounds for the Court to come to any conclusion that the Defendants have infringed the mark
Have the Plaintiffs established a case of ‘passing off’
Are the products similar or allied/cognate
Will the inherent nature of the product, cause confusion in the minds of the consumer while purchasing
Does the house-mark, ‘Himalaya’ along with trademark ‘EVECARE’, eliminate confusion
Is there any delay on the part of the plaintiffs in filing the present suit
FINDINGS OF THE COURT
It is undisputed that both the plaintiffs and the defendant use the identical trademark, ‘EVECARE’, in respect of their respective goods.
There is a likelihood that actual damage will be caused to the business or goodwill of the Plaintiff and as the defendant has failed to provide a plausible explanation for adopting the identical trademark , it amounts to misrepresentation.
Though a case for infringement cannot be made out, an action of passing off would be maintainable
The goods of the defendant are similar and allied/cognate to the goods of the plaintiff
The inherent nature of the products is likely to cause confusion as both the products pertain to menstrual and reproductive health of women
The house-mark, ‘Himalaya’ along with trademark ‘EVECARE’, will not eliminate confusion
The use of the identical mark by the defendant would cause injury to the goodwill and reputation of the plaintiffs but is also likely to cause confusion and deception in the market.
ORDER OF THE COURT
The High Court upheld the contentions of the Plaintiff and the Defendants or any other person acting for and on their behalf were restrained from manufacturing, selling, offering for sale, advertising, directly or indirectly dealing in any manner with regard to any products and services, including but not limited to their female hygiene and menstrual health product under the mark ‘EVECARE’ and/or any other mark which is deceptively similar to the plaintiffs’ registered ‘EVECARE’ mark till the final adjudication of the suit
OUR ANALYSIS
This decision reaffirms the role of trademark protection and its role while marketing of goods. It is a positive step towards increased clarity and attempts to lay down guidelines for protection against ‘passing off’, in future.