The Delhi High Court, recently, granted interim relief to Sun Pharma (“Plaintiff”) in a trademark infringement case against the nutritional-supplement company, Protrition Products LLP (“Defendant”) from manufacturing, selling, offering for sale, advertising, directly or indirectly dealing in dietary/health supplements, nutraceuticals, apple cider vinegar and promotional material such as t-shirt, shaker, bags, face mask or any other goods under the marks ABBZORB, ABBZORB NUTRITION, , and or any other trade mark as might be deceptively similar to plaintiff’s trade mark ABZORB.
The suit was filed as the Plaintiff was aggrieved by the use, by the defendants, of the marks ABBZORB and ABBZORB NUTRITION. Defendant No. 2 possesses registrations in respect of the marks ABBZORB and ABBZORB NUTRITION, but in Classes 29 and 30. The defendants are, however, using ABBZORB NUTRITION for manufacturing and selling whey protein. The Plaintiff contended that whey protein is appropriately classifiable under Class 5 of the Nice Classification. Thus, unlike the plaintiff, the registered marks of the Defendant No. 2 are not being used in accordance with their registrations, either for the Class, or the goods, in respect of which the marks are registered.
As per the Defendant, it bona fidely adopted the mark and contended that the Plaintiff’s brand ‘Abzorb’ should not have been granted registration as it was a mere variant of the common English word ‘absorb’. Further, it highlighted questions regarding the distinctiveness of the Plaintiff’s mark and argued that that any confusion between the two products would be more significant if consumers mistakenly used an anti-fungal preparation in place of whey protein, instead of the other way around. Moreover, the Defendant asserted the stark price difference between the rival products, difference in target consumers and the discrepancy in the pricing of the rival products would render consumer confusion unlikely.
The court observed that the aspect of infringement has to be determined, under Section 29 of the Act, on a mark-to-mark comparison and if, mark compared to mark, there was likelihood of confusion or deception, or a presumption of association, there was infringement. The Court also opined that “the possibility of likelihood of confusion had to be assessed from the consumer’s point of view of average intelligence and imperfect recollection who seeks the marks at different points of time. The test had to be applied at the initial interest stage, meaning, when defendant’s mark was initially seen by the consumer and if, on viewing it, he, having earlier seen plaintiff’s mark, was placed in a state of wonderment as to whether the two marks were the same, or associated, there was infringement.”
The Court also stated that the sole extra letter “B” in defendants’ ABBZORB, as compared to plaintiff’s ABZORB, was hardly likely to impress itself on the psyche of a consumer of average intelligence and imperfect recollection and there was every likelihood of the consumer confusing one product for the other, or at the very least, presuming an association between the two products as a result of the similarity between the two marks. Any difference between the visual appearance of marks ABZORB and ABBZORB, when seen as labels, was of no consequence”. Thus, the Court held that prime facie, mark ABBZORB was deceptively similar to mark ABZORB, even if mark ABBZORB was seen as a device mark, rather than a word mark.
Sun Pharmaceutical Industries Ltd. v. Protriton Products LLP, CS(COMM) 533 of 2022, decided on 24-11-2023.