The main legal point established in the judgment is the need for stricter standards in preventing confusion in pharmaceutical products, as confusion could have disastrous effects on public health. The court emphasized the potential harm to consumers and the test of phonetic similarity in determining infringement.

JUDGMENT :

Indermeet Kaur, J.

I.A. No. 12676/2014 (XXXIX Rules 1 and 2 CPC)

1. Plaintiff, a duly incorporated company, is stated to be a reputed manufacturer and merchant of vide range of pharmaceutical, nutraceutical, veterinary and cosmetics preparations in India sold under its various well-known distinctive trademarks including MANKIND. This trademark was adopted by the plaintiff in the year 1986. Although it is a dictionary word but the plaintiff company was the first in India to introduce the word in the market by virtue of qualitative, affordable pharmaceuticals. Prior to the plaintiff's group of companies there existed no trade name/brand name in the Indian industries particularly in the pharmaceutical companies by the word "KIND" let alone "MANKIND". The plaintiff has more than 150 registration of the trademark of MANKIND and/or KIND either with a suffix or prefix attached to it. (Attention has been drawn to the said registration marks.) The plaintiff group is selling all its products extensively under the aforenoted trade name MANKIND and has more than 107 different products in the market. It has acquired a goodwill and reputation of a highest character. The presence of the plaintiff has been crystallized in the every nook and corner of the country. Its products are well advertised in all well-known journals including Debonair, Filmfare, Femina, Grahasobha, Sarita, Saras, Salil etc. The goodwill and reputation of the mark of the plaintiff MANKIND is distinctive being a symbol of its high quality product. Plaintiff is also registered with the mark METROKIND under registration no.1204934 on 09.6.2003. The goods sold under the mark METROKIND are with respect to a composition Metronidazone i.e. an anti-infective medication used in the treatment of infections.

2. The defendant has started using the mark MECOKIND PLUS which is deceptively similar and almost identical with the trade name "METROKIND" of the plaintiff. Enquiry had revealed that the defendant does not have a registration but had applied before the Registrar of Trademarks for registration of the trademark MECOKIND which is pending since 29.3.2013. The product of the defendant is also for a medicinal purpose which is a non-scheduled drug and not being a schedule H drug, it is available at the counter without a prescription.

3. Submission in the application being that the mark of the defendant is deceptively similar to the mark of the plaintiff as MECOKIND PLUS is not only phonetically and structurally similar to the registered trademark METROKIND of the plaintiff but keeping in view the fact that both the products are being sold by the chemist being a pharmaceutical product across the counter, there is every possibility of confusion and deception qua the purchase of such a product by the consumer.

4. Learned senior counsel for the plaintiff in support of his submissions has placed reliance upon Neon Laboratories Ltd. Vs. Themis Medicare Ltd., (2014) 60 PTC 621. Kirorimal Kashiram Marketing and Agencies Pvt. Ltd. Vs. Shree Sita Chawal Udyog Mill, (2010) 44 PTC 293, Novartis AG Vs. Crest Pharma Pvt. Ltd. and Another, (2009) 41 PTC 57 and Cadila Health Care Ltd. Vs. Cadila Pharmaceuticals Ltd., AIR 2001 SC 1952; submission being that in the sale pharmaceutical products stricter standards have to be applied to prevent likelihood of confusion as consumption of such a product could even result in a physical harm to the consuming public. Accordingly, an injunction has been prayed seeking a restraint upon the defendant from using the aforenoted mark MECOKIND PLUS.

5. Reply to the pending application and written statement to the suit have been filed. Submission of the defendant is that the product sold under the name MECOKIND PLUS is available in either a capsule, tablet or an injection form whereas METROKIND which is the mark of the plaintiff under which his products are sold is available as an ointment and there is no scope of deception. Defendant product is sold under the nam