Recent Decisions

Supreme Court expands the meaning of confusion

The Supreme Court, in suit for infringement of goods relating to medicinal products between two rival marks FALCIGO and FALCITAB has considerably expanded the meaning of confusion. The court has held that while deciding cases of passing off relating to medicinal products the court must not speculate on whether there was any probability of confusion but must consider whether there was any possibility of confusion.

In Cadila Health Care Ltd Vs. Cadila Paramaceuticals Ltd. (2001 SOL Case No. 221) the Supreme Court observed that the decisions of English Courts would be relevant in a country where literary is high and the marks used are in the language which the purchaser can understand. While English cases may be relevant in understanding the essential features of trade mark law but whilst dealing with the sale of consumer items in India, you have to see and bear in mind the difference in situation between England and India. The court felt that English principles could not apply in their entirety in India with no regard to Indian conditions since in a country like India there is no single common language, a large percentage of population is illiterate and a small fraction of people know English. The purchaser of such goods in India may have absolutely no knowledge of English language or of the language in which the trade mark is written and to whom different words with slight difference in spellings may sound phonetically the same. While dealing with cases relating to passing off, one of the important tests which has to be applied in each case is whether the misrepresentation made by the defendant is of such a nature as is likely to cause an ordinary consumer to confuse one product for another due to similarity of marks and other surrounding factors. What is likely to cause confusion would vary from case to case. However, where medicinal products are involved, a stricter approach should be adopted as confusion between the two medicinal products may have disastrous effects on health and in some cases life itself. Stringent measures should be adopted specially where medicines are the medicines of last resort as any confusion in such medicines may be fatal or could have disastrous effects.

For physicians and pharmacists are human and in common with the rest of mankind are subject to human frailties. In the field of medicinal remedies the courts may not speculate as to whether there is a probability of confusion between similar names. If there is any possibility of such confusion in the case of medicines public policy requires that the use of the confusingly similar name be enjoined