A suit was filed by the Plaintiff against the Defendants seeking permanent injunction restraining of trademarks, passing off, unfair competition, damages/rendition of accounts of profits and delivery up, etc.
Competing Trade Marks
| Plaintiff’s Trade Mark | Defendant’s Mark |
| PEPFIZ Molecule: Papain, Fungal Diastase And Simethicone Use: Antacid Sold in the form: Effervescent tablets and sachets. TM Registration under No. 555726 dt. 02.08.1991 in Class- 5. Renewed and subsisting. | PEPFIX Molecule: Same Use: same Sold in the form: Capsules No TM appl. filed |
| REVITAL Molecule: combination of vitamins and minerals Use: Multivitamins for overall health. Earliest TM registration under no. 447372 dt. 26.12.1985. Renewed and subsisting. | NEOVITAL Molecule: Same Use: same No TM appl. filed |
Arguments qua the Plaintiff’s goods
It was contended that the Plaintiff coined and adopted the trade marks PEPFIZ and REVITAL in the years 1991 and 1985 respectively, and has been continuously, openly and extensively using them since the years 2004 and 1988, respectively. The said trade marks had annual sales of approx. Rs. 22.6 million and Rs. 17,948.4 million, respectively in the FY 2023-24.
Arguments qua the deceptive marks
It was contended that the competing marks are deceptively similar, which is evident from the fact that the impugned mark PEPFIX is almost identical to the Plaintiff’s trade mark PEPFIZ, with the ‘Z’ being replaced with ‘X’ in the impugned mark. It was further contended that the Defendant No. 1 has another product called PEPSOL with the same product packaging, to which the Plaintiff has no objection, and the Plaintiff only seeks relief against the mark PEPFIX.
The Plaintiff further contended that the impugned mark NEOVITAL is phonetically, visually, and structurally similar to Plaintiff’s registered and prior used trade mark REVITAL, which is causing confusion among consumers.
It was submitted that the adoption and use of the impugned marks amount to infringement of Plaintiff’s registered trade marks, passing off and unfair competition, which is in turn causing confusion and deception amongst the public and loss to the Plaintiff. Therefore, the Defendant ought to be restrained by way of an ex-parte ad interim injunction.
Court’s Direction
Local Commission
The Hon’ble Court appointed one Local commissioner to execute a local commission, directing to search and seize all the products bearing impugned marks PEPFIX and NEOVITAL, their packaing, promotion materials, etc at the Defendant’s premises.
Injunction
The Hon’ble Court restrained the Defendant in dealing in goods under the impugned marks PEPFIX and NEOVITAL or any other extensions and / or any other trademarks containing the words PEPFIX and NEOVITAL, or any other mark that may be identical or deceptively similar to the Plaintiff’s registered trade marks PEPFIZ and REVITAL.
Counsel appearing for Plaintiff: Adv. Sachin Gupta, Adv. Rohit Pradhan, Adv. Ajay, Adv. Prashansa singh, Adv. Tanmay Sharma, Adv. Adarsh Agarwal, Adv. Yashveer Singh.
