The Bombay High Court, recently, granted an ad interim temporary injunction in favor of Glenmark Pharmaceuticals Ltd. (“Applicant/Plaintiff”), restraining Gleck Pharma Pvt Ltd. & Ors. (“Respondents/Defendants”) from using the impugned trademark XIGAMET in relation to medicinal or pharmaceutical preparations as it is deceptively similar to the Plaintiff’s trademark ZITA-MET.
The Plaintiff argued that it is the registered proprietor of the trademark ZITA-MET and ZITA-MET formative marks which is being used in relation to an anti-diabetic drug. It was argued by the Plaintiff that the Defendant’s use of the impugned trademark XIGAMET amounts to infringement of the Plaintiff’s mark owing to its phonetic, aural and visual similarity with the Plaintiff’s mark. Defendant, on the other hand, argued that the suffix MET is commonly used in the industry, across the globe. Furthermore, the Defendant argued that there is another registered trademark which is similar to the Plaintiff’s mark and is operating in the same market without causing confusion to the consumers and therefore, the objection raised by the Plaintiff with regards to the confusion amongst the consumers does not sustain.
The main issue for consideration before the court was whether the impugned mark was deceptively similar to the Plaintiff’s mark. The court said that a stricter approach has to be adopted while applying the test of deceptive similarity in the case of medicinal products since any confusion in this regard may have disastrous effect on the health of the consumers. The court opined that a lesser quantum of proof of confusion is required in the case of medicinal products and the court is not to speculate regarding the probability of confusion between the marks. Accordingly, the court granted an ad interim injunction in favor of the Plaintiff.