Ranbaxy Laboratories Ltd. Vs. Dua Pharmaceuticals Pvt. Ltd.
1988 (8) PTC 273 (Del)
Plaintiff had filed a suit alleging that its registered trade mark “CALMPOSE” has been infringed by the defendant, who is manufacturing similar medicine and marketing under the mark of “CALMPROSE”.
Medicine in question is sold by chemists on the prescription of a medical practitioner and therefore there cannot be any confusion.
The marks are dissimilar.
Two words in the present case, namely, “CALMPOSE” and “CALMPROSE” are phonetically and even visually similar. What the Defendant has done is to insert the letter “R” in the middle of the word and converted “CALMPOSE” to “CALMPROSE”. The intention of the Defendant clearly is to cash in on the reputation which has been built up by the Plaintiff over the years in the sale of its medicine “CALMPOSE”.
It is true that the said drugs are supposed to be sold on doctor’s prescription, but it is not unknown that the same are also available across the counters in the shops of various chemists. It is also not unknown that the chemists who may not have “CALMPOSE” may pass off the medicine “CALMPROSE” to an unwary purchaser as the medicine prepared by the Plaintiff. The test to be adopted is not the knowledge of the doctor, who is giving the prescription. The test to be adopted is whether the unwary customer, who goes to purchase the medicine, can make a mistake.
It is clear that the dimension of the strip of the Defendant is practically the same as the one made by the Plaintiff. The type of packaging is identical; the colour scheme is similar and even the manner of writing is not very different. This is a clear case of an attempt by the Defendant to pass off its product as that of the Plaintiff.
The interim injunction was confirmed in favour of the Plaintiff.