Generic and descriptive terms in trademarks cannot be exclusively claimed, and likelihood of confusion must be assessed holistically from the average consumer's perspective.

JUDGMENT : 

SANDEEP SHARMA, J.

1. Instant application under Order XXXIX Rules 1 and 2 of The Code of Civil Procedure, 1908 has been preferred at the behest of plaintiff seeking interim injunction to restrain the defendant including entities or/and persons acting for and on its behalf, from violating its statutory and common law rights in its registered trademarks ‘Glucon-D’ and ‘Glucon-C’ and associated registered label marks, as well as trade dress rights in packaging, and copyright in artwork on such labels and packaging, by using the marks ‘Glucose-D’ and ‘Glucose-C. The products are glucose-based powders combining glucose and Vitamin D or Vitamin C to be mixed with water and consumed as an energy drink which are sold and manufactured by both parties. The subject matter of the plaint is a commercial suit as defined in Section 2(1)©(xvii) of The Commercial Courts Act, 2015.

2. Plaintiff, Zydus Wellness Products Ltd, is an Indian company engaged in the business of food, nutrition and skincare products. The plaintiff is, inter alia, the registered proprietor of several trademarks, but for the purpose of the present plaint, the trademarks ‘Glucon-D’ and ‘Glucon-C’ are the ones relevant for consideration. Products under this brand were first launched in 1933 by Plaintiff’s predecessors. ‘Glucon-D’ was registered in India in 1975 and ‘Glucon-C’ was registered around 1985.

3. Initially, these trademarks were used in India by Glaxo Laboratories, then Heinz India Pvt. Lyd. under license from Heinz Italia S.p.a., however vide two separate deeds of assignment dated 01.02.2020 and 23.01.2019, Heinz Italia S.p.a. transferred ownership of trademarks and all intellectual property rights to Heinz India Pvt. Ltd. (Annexure-C). Subsequently, in 2019, Plaintiff and Heinz India Pvt. Ltd. merged via a scheme of amalgamation and Plaintiff became the owner of brands like ‘Glucon-D’ and ‘Glucon-C’ amongst others. (Annexure-D)

4. Plaintiff claims to be one of India’s leading food, nutrition and skincare product companies with leading brands like ‘Glucon-D’, ‘Glucon-C’, ‘Nuralite’, ‘Complan’, ‘Sampriti’, ‘Nycil’, ‘EverYuth’, ‘Sugar Free’ etc. having enormous global presence.

5. Defendant, Leeford Healthcare Ltd. is an Indian Company engaged in the business of generic pharmaceuticals and wellness products. Defendant claims to be using the mark since 17 years without any objection and the packaging in question for the past 4 years. The defendant's mark ‘Rock On’ is registered as a word mark under Class 5.

6. A Cease and Desist notice was served upon the defendant on 17.04.2023 by the plaintiff. The defendant replied on 13.05.2023, pursuant to which the plaintiff made further attempts to resolve the matter amicably, including through subsequent letter dated 21.06.2023. However, since no satisfactory outcome resulted from the said communications, the plaintiff instituted the present suit alongwith an interim application for redressal of its grievances.

7. Precisely the case of the plaintiff is that the defendant uses the trademarks ‘Glucose-D’ and ‘Glucose-C’ for glucose based instant energy drink thereby misappropriating and copying packaging/labeling and artwork therein which is deceptively similar, if not identical, to Plaintiff’s packaging for ‘Glucon-D’ and ‘Glucon-C’ marks/products, thus being trade dress and copyright infringement.

8. Plaintiff is asserting the following registered trademarks as infringed:

• TM No. 324132 for Class 29
• TM No. 305664 for Class 30
• TM No. 324131 for Class 32
• TM No. 538402 for Class 5
• TM No. 538403 for Class 30
• TM No. 1323811 for Class 30
• TM No. 1323810 for Class 30
• TM No. 5820259 for Class 30
• TM No. 5820266 for Class 30
• TM No. 5830267 for Class 5 (pending)
• TM No. 5820260 for Class 5 (pending)

Arguments on behalf of the Plaintiff

9. Mr. Guru Natraj, learned counsel duly assisted by Ms. Shradha Karol, Advocate for the plaintiff submitted that plaintiff relies on its trade mark registrations for ‘Glucon-D’ and ‘Glucon-C’