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Initial Interest Confusion In Pharmaceutical Trademarks

The Hon'ble High Court of Delhi recently addressed the nuanced concept of initial interest confusion in a trademark dispute involving medicinal products. The case involved the Plaintiff, the registered proprietor of the trademark AZIWOK since 1994, and the Defendant, who sought registration for the trademark AZIWAKE in 2022 as proposed to be used basis.

Phonetic Similarity and Defendant's Argument:
The Defendant contended that their mark AZIWAKE was distinct from the Plaintiff's AZIWOK. However, the court dismissed this argument, emphasizing the phonetic similarity between the two marks.

Prescription by Doctors and Consumer Confusion:
A crucial aspect of the case was the contention that since the products were sold under a doctor's prescription, confusion was unlikely. The court, however, reasoned that doctors might not be aware of the subtle distinctions between AZIWOK and AZIWAKE, especially when both are associated with azithromycin. The potential for confusion was deemed to exist not only at the doctor's level but also during the dispensing and purchasing stages.

Application of Initial Interest Confusion Test:
The Delhi High Court applied the test of initial interest confusion, focusing on the moment when a consumer first encounters the defendant's mark. The court highlighted that if, at this stage, the consumer is likely to wonder whether the mark is the same as the one previously seen or associated with the plaintiff's mark, the likelihood of confusion exists under Section 29(2)(b).

Impression at the Initial Interest Stage:
The court emphasized that the impression formed in the consumer's psyche during the initial encounter is crucial. Even if further information might dispel confusion, the initial doubt is sufficient for establishing infringement. The consumer, upon encountering both AZIWOK and AZIWAKE, was deemed likely to experience wonderment or confusion, leading to a finding of "likelihood of confusion" under the relevant legal provision.

The Concluding Note:
In granting an interim injunction against the Defendant, the Delhi High Court demonstrated a strict application of the initial interest confusion test. The decision underscores the significance of the consumer's initial impression, emphasizing that any doubt or confusion at this stage is legally relevant.

The Case Law Discussed:
Case Title: Dr Reddys Laboratories Vs Smart Laboratories Pvt Ltd
Date of Judgement/Order:16/11/2023
Case No. CS(COMM) 744/2023
Neutral Citation No: 2023:DHC:8214
Name of Hon'ble Court: Delhi High Court
Name of Hon'ble Judge C Harishankar, HJ

Information and discussion contained herein is being shared in the public Interest. The same should not be treated as substitute for expert advice as it is subject to my subjectivity and may contain human errors in perception, interpretation and presentation of the fact and issue involved herein.

Written By: Advocate Ajay Amitabh Suman, IP Adjutor - Patent and Trademark Attorney
Email: [email protected], Ph no: 9990389539

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