Medicines must be clearly distinguishable; even slightest confusion not permitted: Delhi High Court

The Delhi High Court recently observed that even the slightest possibility of confusion cannot be permitted when it comes to labelling medicines. [Mankind Pharma Limited v. Novakind Bio Sciences Private Limited].The Court made the observation while deciding on Mankind Pharma’s suit for a permanent injunction to restrain Novakind BioSciences from using the word ‘Kind’ in any of its medicinal and pharmaceutical preparations.Justice C Hari Shankar said that whether different medicines are deceptively similar must be viewed from the point of view of a customer of average intelligence and imperfect recollection..The judge also commented that the existence of poorly designed pharmacies, run by unqualified persons, is an unfortunate reality in India.“The little apothecary, oftentimes not even able to flaunt a medical degree, occupying the little cubbyhole at the street corner, dispensing medicines, is an unfortunate reality in this country. The poor, and those who are unable to afford the services of the more upmarket physician, often people these “clinics”. Many of these “doctors” prescribe medicines based on their manufacturer,” the judgment stated..On April 21 in 2021, the Court had issued an ex parte interim injunction against Novakind. This year, Novakind filed an application to vacate the interim injunction, arguing that Mankind has no registration in its favour for the mark ‘Kind’ and that it cannot claim exclusive control over it.However, the Court said that Mankind has registration over the mark ‘Mankind’ in every class. It further observed that ‘Mankind’ and ‘Novakind’ are phonetically and deceptively similar. Since both marks have the same suffix, the submission that Mankind did not have any registration for the mark ‘Kind’, failed to impress the Court.“The “KIND” suffix not being endemic to pharmaceutical preparations, there is every likelihood of a customer of average intelligence and imperfect recollection, who chances across the defendant’s “NOVAKIND” product, to believe it to be one of the KIND family of the marks belonging to the plaintiff. At the very least, therefore, the possibility of an impression of association between the defendant‟s mark and the plaintiff’s mark, in the mind of the customer of average intelligence and imperfect recollection would exist,” the Court said..Justice Shankar added that such a likelihood of association is sufficient to constitute trademark infringement..The Court was also unconvinced by Novakind's submission that medicines are prescribed and given by persons who know their job. Justice Shankar said that even a physician or chemist may get confused owing to the common ‘Kind’ suffix.“At the end of the day, the guiding principle is that, where medicines are concerned, even the slightest possibility of confusion cannot be permitted, and that, therefore, drugs – especially prescription drugs – have to be clearly distinguishable from one another,” the Court observed..The Court, therefore, made the interim injunction absolute and dismissed Novakind’s application..Senior Advocate Amit Sibal and Advocates Hemant Daswai, Saumya Bajpai, Rishabh Sharma and J Dhindra represented Mankind Pharma.Advocate Sushant Mahaptra represented Novakind Bio Sciences..[Read Judgment]