The homeopathic drug manufacturer was selling its medicine for sexual disorders.
New Delhi:
The Delhi High Court has permanently restrained the use of the “Vigoura” mark by a homeopathic drug manufacturer for selling its medicine for sexual disorders.
The court’s decision came on a lawsuit for trademark infringement filed by Pfizer Products Inc., which sells a well-recognised erectile dysfunction allopathic drug under the “Viagra” trademark.
Stating that there was a “strong potential” for confusion between the two names because of their resemblances and overlap in commercial operations, Justice Sanjeev Narula directed Renovision Exports Private Limited not to use “Vigoura” or any other mark that is “deceptively similar” to Pfizer’s trademark “Viagra”.
It also ruled that the petitioner shall be entitled to nominal damages of Rs 3 lakh, recoverable jointly and severally from the defendant entity.
“The defendants or anyone acting on their behalf are permanently restrained from manufacturing, selling or offering for sale, marketing, advertising or in any other manner using the mark ‘VIGOURA’ or any mark deceptively similar to the plaintiff’s trademark ‘VIAGRA’ in relation to any of their goods as would amount to infringement or passing off of the plaintiff’s registered mark ‘VIAGRA’,” the court said in its order passed on Wednesday.
“Plaintiff’s trademark ‘VIAGRA’ is highly recognised by its name in the sphere of erectile dysfunction drugs. They have invested heavily in building a brand and owing to its success, ‘VIAGRA’ has acquired national and global repute. Consequently, the defendants’ subsequent adoption of the impugned mark with the knowledge of the plaintiff’s existence warrants an award of damages in the plaintiff’s favour,” the court said.
It observed that there was material that successfully proved Pfizer’s status as the proprietor of the “Viagra” trademark and the company’s successful registration in India further proved its exclusive ownership over the mark here.
The court said “Vigoura” and “Viagra” exhibited a high degree of phonetic similarity that could mislead consumers into believing that the former was either a variant of or endorsed by the makers of “Viagra”.
Further, the overall length of the words and their similar letter arrangements can cause confusion at a glance, especially in environments where consumers make quick decisions, such as online searches or pharmacy purchases, the judge added.
“This initial confusion can occur regardless of the consumer’s overall awareness or knowledge of the differences between allopathic and homeopathic remedies. In such scenarios, while the consumer might understand the distinctions between the kinds of treatment (allopathic versus homeopathic), the resemblance in the ailment intended to be cured and the names or trademarks can induce an association between the two products, based on perceived endorsements or verbal accounts or recommendations,” he said.
“In view of the resemblances between the two trademarks and the overlap in the field of use and commercial operations, as elucidated above, there is a strong potential for confusion amongst the general public. Thus, the court answers this issue in favour of the plaintiff and against the defendants, holding that the defendants’ ‘VIGOURA’ mark infringes the plaintiff’s registered ‘VIAGRA’ mark under sections 29(1) and 29(2)(b) of the Trademarks Act,” the court concluded.
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