Trademark
Infringement and passing off—Plaintiff seeks to protect their trademark rights in “VIAGRA”, a well recognized erectile dysfunction allopathic drug, by seeking permanent injunction and other ancillary reliefs to prevent the defendant from marketing their homeopathic medicine under a similar trademark “VIGOURA,” used alleged for curing sexual disorders—Plaintiff is the proprietor of the trademark “VIAGRA”—Defendants’ trademark “VIGOURA” is held to be deceptively similar to plaintiff’s trademark “VIAGRA”—In view of resemblances between the two trademarks and the overlap in the field of use and commercial operations, there is a strong potential of confusion amongst the general public—Defendants “VIGOURA” mark infringes the plaintiff’s registered “VIAGRA” mark under Sections 29(1) & 29(2) of the Trademarks Act—Defendants’ use of the “VIGOURA” mark constitute a clear case of passing off, undermining the distinctive character and reputation of the plaintiff’s “VIAGRA” trademark—Plaintiff has satisfactorily discharged the burden of proof required to establish a case of passing off—In light of registration by third parties, the defendants contended that their use of the mark "VIGOURA" under the homeopathic system of medicine cannot be presumed to be in violation of the law—Infringement and need for injunctive relief are to be determined by the defendants' actions alone, without consideration of third-party use that have not been contested by the Plaintiff—Defendants held to be guilty of infringement of trademark and passing off—Suit decreed in favour of the plaintiff and against the defendants—Defendants or anyone acting on their behalf are permanently restrained from manufacturing, selling, or offering for sale, marketing, advertising, or in any other manner using the mark "VIGOURA" or any mark deceptively similar to the Plaintiff's trademark "VIAGRA" in relation to any of their goods as would amount to infringement or passing off of the Plaintiff's registered mark "VIAGRA"—Plaintiff held entitled to nominal damages to the tune of rupees three lakhs recoverable jointly and severally from the defendants.
[Paras 14, 29, 41, 44, 45, 49 & 50]