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​​Consumer Protection​ Through IP​​

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. ​

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