The Delhi High Court, recently, restrained Wipro Enterprises Pvt. Ltd. (“Defendant”) from manufacturing, selling, offering for sale, advertising, directly or indirectly, female hygiene and menstrual health products under the mark EVECARE and/or any other mark which is deceptively similar to Himalaya Wellness Company’s (“Plaintiff”) registered trade mark, EVECARE.
The suit was filed based on the Plaintiff’s earlier rights in the marks, EVECARE and EVECARE FORTE, for products used to relieve symptoms of dysfunctional uterine bleeding. The Plaintiff submitted that it has been selling ayurvedic uterine tonic under these marks for nearly 24 years. Conversely, the Defendant launched its product under the mark EVECARE only in 2021. As per the Plaintiff, both the products are ‘hush products’ pertaining to menstrual and reproductive health of women, and therefore, buyers may exercise less than normal inquisitiveness, increasing the likelihood of confusion.
As per the Defendant, it bona fidely adopted the mark for its feminine hygiene products since ‘EVE’ represents that it is a female-centric brand, and ‘CARE’ gives it a protective tone. Further, as per the Defendant, its searches of the records of the Trade Marks Registry did not reveal any application/registration for the mark EVECARE in Class 3, and accordingly, it has also successfully obtained a registration for this mark. Further, the Defendant submitted that the Plaintiff decided to use the mark EVECARE for intimate wash only in August 2022, and the rival products are different in nature, i.e., ayurvedic medicine in Class 5 v. cosmetic intimate wash in Class 3.
The court observed that the Plaintiff had been using the EVECARE marks for several decades, and had in its prima facie view acquired significant goodwill and reputation. The court further opined that a simple due diligence exercise conducted by the Defendant would have informed it about the existence of the Plaintiff’s product. The court noted that the rival products are used for the same physical ailments, and owing to the nature of the goods, there is added factor for likelihood of confusion since a prospective buyer of such products is unlikely to ask too many questions since menstrual health is still not a subject of free and open discussion. Accordingly, the court granted an interim injunction in favour of the Plaintiff.
Himalaya Wellness Company & Ors. v. Wipro Enterprises Private Limited, CS(COMM) 118/2023, Judgement dt. July 12, 2023