CASE ANALYSIS: Cadila Healthcare Limited vs Cadila Pharmaceuticals Limited on 26 March, 2001

INTRODUCTION

Trademark is actually for the advertisement of its nature and quality. When it becomes popular, people are tempted to pass off their products as that of the first owner of the mark. Hence, passing off action is deceptive.

Passing off is claimed to be a species of unfair trade competition or of actionable unfair trading by which one person, through deception, attempts to urge an economic advantage of the reputation which other has established for himself during a particular trade or business.[3] There are five ingredients of passing off. First ingredient being misrepresentation, second being that the misrepresentation must be by a trader within the course of trade, third being to prospective customers/ final consumers, fourth being that [4] trader must remember of the consequence i.e injuring the goodwill or business of another trader and therefore the last being actual damage to the goodwill of the business of the trader that he misrepresents.

FACTS

The appellant and therefore the respondent are pharmaceutical companies who have launched medicinal products named Falcitab and Falcigo respectively and registered it within the year 1996 and 1997 respectively. In the year 1998, the appellants realized that the respondent had a product almost like it in name only and purpose and filed for an injunction restraining them from further trade before the district court of Vadodara. This was dismissed by the court in favor of the respondents for the explanations that the 2 products were different in appearance, formulation, and price which they were scheduled L products i.e they were sold on to the hospitals/clinic and indirectly to the individuals. Hence, there wasn’t any scope for confusion. After this, the appellants approached the high court. The supreme court dismissed the appeal on the grounds that there was little chance of passing off and there was no likelihood of confusion. When the appellants approached the Supreme Court, it refused to delve into the matter of the validity and legality of the order gone by the lower courts since it was under the requirement for the speedy disposal of the case. This case involves an issue of passing off which is different from the infringement of the trademark.

LEGAL ISSUE

If there is passing off of goods by the respondent?

RULES

In the case of passing off, one trader unscrupulously tries to sell his goods as somebody else’s goods. Remedy for this scenario is thru common law and one can escape liability by establishing that some matter is added to his product which is sufficient to differentiate it for the claimant’s product. When a proprietor registers his trademark, he has the prerogative over it. When somebody infringes this right, a statutory remedy are often availed by it.

The right is infringed when somebody uses his trademark which is that the sin quo non-requisite for this explanation for action to arise. And for this, a statutory remedy are often availed by the proprietor. One cannot escape his liability by marked differences within the products nor can he escape when the 2 products are of various origin. The people that are likely to be deceived thanks to the confusion are the purchasers . The confusion on the resemblance could also be thanks to visual, phonetic resemblance or maybe the essential idea of the products. The identification of the essential features of the mark is, in essence, an issue of fact and depends on the judgment of the Court supported the evidence led before it as regards the usage of the trade.[1] Both registered and unregistered trademarks can avail the protection of passing off as per sec 28 and sec 27(2) respectively

DECISION

The Supreme Court, during this case, laid the factors that require to be considered while deciding cases like these and ordered the court to make a decision the case supported these factors. The factors are:

  • Nature of the products and marks(written or label or composite marks)
  • Degree of resemblance
  • people that are likely to shop for the products supported the mark
  • Mode of buying or placing orders for the products
  • Any other surrounding circumstances

CONCLUSION

The English principles cannot apply to India because there’s no single common language, the literacy rate isn’t high and every one the people don’t know English. In India, one should keep in mind as to who might have absolutely no knowledge of the English language or of the language in which the trademark is written and to whom different words with a small difference in spellings may sound phonetically an equivalent. The violation of trademark law isn’t at par with cases involving non-medicinal products. A stricter approach should be adopted while applying the test to guage the likelihood of confusion of 1 medicinal product for an additional by the buyer. While confusion within the case of non-medicinal products may only cause economic loss to the plaintiff, confusion between the 2 medicinal products may have disastrous effects on health and in some cases life itself. For these reasons, it’s proper to need a lesser quantum of proof of confusing similarity for drugs and medicinal preparations

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