Two Guj firms restrained from infringing trademark on eye care medicines

Therefore, the plaintiffs are entitled to injunctive reliefs both in respect of infringement and passing off, the judge said.In view of the conclusion that the defendants are guilty of infringement and that the continued use of the impugned mark is likely to cause deception or confusion, the plaintiffs are entitled to a preliminary decree for rendition of accounts, including particulars of profits earned by the sale of products bearing the infringing mark.

The Madras High Court has restrained two Ahmedabad firms engaged in manufacturing and selling medicinal and pharmaceutical preparations infringing the trademark HYVISC of Unimed Technology Limited, by using or deceptively similar trademark ZYVISC or any mark identical or similar to its registered trademark.

Justice Senthilkumar Ramamoorthy granted the relief while allowing a civil suit from Unimed Technologies Limited, Sun Pharmaceutical Industries Limited here and Sun Pharmaceutical Medicare Limited in Vadodara in Gujarat, recently.

The suit sought to restrain Cadila Healthcare Limited and Zydus Healthcare Limited in Ahmedabad and their manufacturers, distributors, stockists, agents, wholesalers, retailers, legal representatives or any other person claiming under them from in any manner manufacturing, offering for sale, stocking, advertising directly or indirectly dealing in medicinal and pharmaceutical preparations infringing the trademark HYVISC of the first plaintiff -- Unimed Technology Limited -- by using or deceptively similar trademark ZYVISC or any mark identical or similar to its registered trademark.

According to plaintiffs they came across the defendants' medicinal preparations bearing the mark ZYVISC, which is alleged to be phonetically, structurally and ocularly almost identical to the Plaintiffs' registered trademark HYVISC. Their products and those of the defendants are prescribed for treatment of dry eyes and to accelerate the healing process after cataract operations. Since both the marks are very similar and used in respect of similar or identical products, it is stated that deception and confusion are probable and not merely likely. The adoption of the mark ZYVISC by the defendants is deliberate, mala fide and dishonest, plaintiffs contended.

Allowing the suit, the judge said the admitted position is that both the plaintiffs and the defendants manufacture and market ophthalmic products under the respective marks. While the plaintiffs manufacture two products namely -- HYVISC eye drops and HYVISC Plus -- the defendants manufacture and market ZYVISC Ophthalmic Solution and ZYVISC PFS. While HYVISC eye drops is a lubricant used in the treatment of dry eyes, HYVISC Plus used in eye surgeries to prevent damage to the cornea is also used in the treatment of osteoarthritis and is intended to be administered intra-ocularly (i.e. within the eye). The two marks are phonetically similar. Even visually, there is considerable similarity and both products are used in the treatment of ophthalmic conditions. Although the likelihood of confusion is reduced when a product is administered in a hospital setting, given the phonetic and ocular similarity of the two marks, the likelihood of confusion cannot be discounted. Therefore, it has to be held that the impugned mark ZYVISC is deceptively similar to the plaintiffs' registered trade mark ''HYVISC''.

While an action for trademark infringement is founded on the plaintiffs' proprietary interest in intangible property, an action for passing off is founded on the tort of deceit. Consequently, the burden of proof is higher. In this case, the goods are substantially similar and the marks are also similar. The evidence on record indicates that the plaintiffs adopted the mark in the year 1997, whereas the defendants adopted the mark much later. The explanation provided by the defendants with regard to the reasons for adoption of the mark ZYVISC support the inference that the initial adoption was not mala fide but does not constitute a valid defence to the charge of infringement and passing off. In any case, the continued use of the mark ZYVISC especially in relation to ophthalmic products is likely to cause confusion amongst potential consumers of the relevant products. ''Therefore, the plaintiffs are entitled to injunctive reliefs both in respect of infringement and passing off,'' the judge said.

In view of the conclusion that the defendants are guilty of infringement and that the continued use of the impugned mark is likely to cause deception or confusion, the plaintiffs are entitled to a preliminary decree for rendition of accounts, including particulars of profits earned by the sale of products bearing the infringing mark. On the basis of the loser pays principle, the plaintiffs are also entitled to costs. ''In the result, the suit is decreed by granting the reliefs as prayed for. In addition, the plaintiffs are entitled to a preliminary decree directing the defendants to render accounts of profits made by selling products bearing the mark ZYVISC. The plaintiffs are also entitled to costs assessed in a sum of Rs 3 lakh, which includes court fees, lawyer's fees and other expenses,'' the judge added.

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