The Delhi High Court recently emphasizes the importance of clarity in labeling medicines and the need to avoid any potential confusion.
The Court made the observation while hearing a suit filed by Mankind Pharma seeking a permanent injunction against Novakind BioSciences from using the term ‘Kind’ in their medicinal and pharmaceutical products.
Justice C Hari Shankar highlighted that assessing the deceptive similarity between different medicines should be done from the perspective of an average-intelligence customer with imperfect recollection. The judge also acknowledged the unfortunate reality of poorly designed pharmacies run by unqualified individuals in India.
“The little apothecary, oftentimes not even able to flaunt a medical degree, occupying the little cubbyhole at the street corner, dispensing medicines, is an unfortunate reality in this country,” the order reads.
These establishments sometimes prescribe medicines based on their manufacturer, particularly for those who can’t afford more upscale medical services.
On April 21, 2021, the Court issued an ex parte interim injunction against Novakind. This year, Novakind applied to lift the interim injunction, arguing that Mankind lacked registration for the ‘Kind’ mark and couldn’t claim exclusive control over it. However, the Court highlighted that Mankind had registration for the ‘Mankind’ mark in all classes. The similarity in phonetics and deceptive nature of ‘Mankind’ and ‘Novakind’ led the Court to reject Novakind’s argument.
“The ‘KIND’ suffix not being endemic to pharmaceutical preparations, there is every likelihood of a customer of average intelligence and imperfect recollection, who chances across the defendant’s ‘NOVAKIND’ product, to believe it to be one of the KIND family of the marks belonging to the plaintiff,” the bench stated.
The single bench emphasized that this likelihood of association constitutes trademark infringement. The Court wasn’t convinced by Novakind’s claim that medicines are prescribed by knowledgeable individuals. Even a physician or chemist could be confused due to the common ‘Kind’ suffix. The Court stressed that medicines, particularly prescription drugs, must be clearly distinguishable to avoid any confusion.
Consequently, the Court upheld the interim injunction and dismissed Novakind’s application.
