The Delhi High Court (“Court”) granted injunction in the case filed by 𝐃𝐫. 𝐑𝐞𝐝𝐝𝐲’𝐬 𝐋𝐚𝐛𝐨𝐫𝐚𝐭𝐨𝐫𝐢𝐞𝐬 𝐋𝐢𝐦𝐢𝐭𝐞𝐝 (“Plaintiff”) v/s 𝐒𝐦𝐚𝐫𝐭 𝐋𝐚𝐛𝐨𝐫𝐚𝐭𝐨𝐫𝐢𝐞𝐬 𝐏𝐯𝐭. 𝐋𝐭𝐝. (“Defendant”) for use of the mark “AZIWAKE” as it was phonetically deceptively similar to the Plaintiff’s mark AZIWOK.
The court based the observation on the Pianotist Test, which has, "come to be regarded as the gold standard, having been followed and adopted in, among others, the decisions of the Supreme Court", the High Court held that there was no real distinction between their look and sound.
The Court states that the competing words are, in the present case, "AZIWOK" and "AZIWAKE". There is no real distinction between their "look" and "sound", especially as the plaintiff holds a word mark registration for the word "AZIWOK". Though, considering the buyer side, it is obvious that AZIWAKE is phonetically similar to AZIWOK, as they sound deceptively identical to the ear. Additionally, Both the marks are used for the same pharmaceutical preparation, namely, azithromycin.
The Court restrained the defendant from using the impugned mark regarding pharmaceutical preparations, or for any other allied of cognate goods or services. It was also clarified that no injunction was passed against the batches of AZIWAKE already circulating in the market or which had been manufactured.
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