ALLEGATIONS
The Informant alleged that the mark adopted by the Defendant is phonetically and structurally deceptively similar to that of the mark of the Informant and was likely to create confusion in the minds of the consumers.
BRIEF OF FACTS
The Informant started making the drug 'Evanova' from April 2002 in the form of capsules for the treatment of menopause while the Defendant had in May 2006 applied for registration of its mark 'Econova' used in probiotic capsules for the treatment of bacterial vaginosis.
According to the Informant, it learned about the illegal activities of the Defendant of infringement of the Informant's registered trademark 'Evanova' and of passing off their product as that of the Informant's. The Informant contended that the products of both the parties dealt in the same area, the standard of scrutiny would have to reckon whether there was phonetical and structural similarity and whether they were likely to create any confusion in the minds of men of ordinary intelligence. The Court should note similarities of the two marks and not decide on the basis of dis-similarities.
The Defendant argued that its mark was aurally, structurally and visually different and dis-similar to that of the mark of the Informant's. Moreover, the product of the Defendant was available only against prescription and not Over The Counter (OTC) as in the case of Informant. It further contended that since May 2006, the company had been extensively using the said trademark and enjoyed immense reputation and goodwill of its own. For these reasons, the Defendant asserted that there is no similarity in the two marks.
CONCLUSION
The Bombay High Court Judge said that he was prima facie satisfied that the Defendant's mark 'Econova' was deceptively similar to the Informant's mark 'Evanova'. He further added that both the products were entirely different and if, as a result of the confusion, the wrong drug was administered, it would lead to disastrous consequences.
DECISION
The Bombay High Court has granted relief to the Informant, directing the Defendant to rename its drug 'Econova' since its name is deceptively similar.
