CADILA HEALTH CARE LTD. versus CADILA PHARMACEUTICALS LTD.

Citation: [2001] 2 S.C.R. 743 · Decided: 26-03-2001 · Supreme Court of India · Bench: B.N. KIRPAL · Disposal: Disposed off

Cited by 2 judgment(s) · see the full citation network in Lexace

Judgment (excerpt)

CADILA HEALTH CARE LTD. 
A 
v. 
CADILAPHARMACEUTICALS LTD. 
MARCH 26, 2001 
[B.N. KIRPAL, DORAISWAMYRAJU AND BRIJESH KUMAR, JJ.] 
B 
Trade and Merchandise Marks Act, 1958-Sections 27 & 28-Trade 
Mark-Medicinal Drugs-Appellant and respondent manufacturing and sell-
ing drug in the brand name of 'Falcigo' and 'Falcitab' respectively-Action 
for passing off-Suit for injunction-Trial Coult dismissing interim injunction 
C 
applictition-Held, strict approach to judge the possibility of confusion should 
be taken for medicinal drugs to avoid disastrous results./-F actors to be 
considered in deciding action for passing off spelt out for the Trial Coult in 
deciding the suit-Drugs and Cosmetics Act, 1940-Section 17B. 
Practice and Pmcedure-Reliance of English Cases-Held, English cases 
D 
and principles cannot be applied to Indian conditions. 
Appellant and respondent are pharmaceutical companies manufac-
turing various pharmaceutical products. The appellant filed a suit seeking 
injunction against the respondent before Trial Court from using brand 
name ''Falcitab" for its drug as it would be passed off as appellant's drug 
''Falcigo" for treatment of same disease in view of confusing similarity and 
deception in the names and package. Tbe Trial Court dismissed the appli-
cation. The appeal filed by the appellant before High Court was also 
dismissed. 
In appeal to this Court, the appellant contended that there is a 
likelihood of deception and confusion among the two drugs which can have 
disastrous results; that the fact that the drug is sold only to hospitals or 
clinics, cannot, by itself be considered a sufficient protection against confu. 
sion; that physicians and pharmacists, though trained people, are not 
infallible; and that there can be no provisions for mistake since a mistake 
in medicines may prove to be fatal. 
The respondent contended that the word ''Falci" is taken from the 
-the name of the dicease ''Falcipharum Malaria"; that it is a common 
practice in pharmaceutical trade to use part of the word of the disease as a 
743 
E 
F 
G 
H 
A 
B 
c 
D 
E 
F 
G 
H 
744 
SUPREME COURT REPORTS 
[2001] 2 S.C.R. 
trade mark to indicate that the drug is meant for a particular disease; that 
the drugs e>f the appellant and respondent are Schedule ''L" drugs which 
cannot he sold across the counter hut are sold only to hospitals and clinics; 
and that there cannot be a remote chance of confusion and deception. 
Disposing of the appeals, the Court 
HELD : 1.1. One of the important tests which has to be applied in 
each case is whether the misrepresentation made by the defendant is of 
such a nature as is likely to cause and ordinary consumer to confuse one 
product for another due to similarity of marks and other surrounding 
factors. What is likely to cause confusion would vary from case to case. 
Where medicinal products are involved, the test to be applied for adjudging 
the violation of trade mark law may not be at par with cases involving non-
medicinal products. A stricter approach should be adopted while applying 
the test to judge the possibility of confusion of one medicinal product for 
another by the consumer. While confusion in the case of non-medicinal 
products may only cause economic loss to the plaintiff, confusion between 
the two medicinal products may have disastrous effects on health and in 
some cases life itself. Stringent measures should be adopted specially where 
such medicines are the medicines of last resort as any confusion in such 
medicines may be fatal or could have disastrous effects. The confusion as 
to the identity of the product itself could have dire effects on the public 
health. [766-H; 767-A-C] 
1.2. The drugs have a marked difference in the compositions with 
completely different side effects. The test should be applied strictly as the 
possibility of harm resulting from any kind of confusion by the consumer 
can have unpleasant and disastrous results. The Courts need to be particu-
larly vigilant where the defendant's drug, of which passing off is alleged, is 
meant for curing the same ailment as the plaintiff's medicine but the 
compositions are different. The confusion is more likely in such cases and 
the incorrect intake of .medicine may even result in loss of life or other 
serious health problems. Although both the drugs are sold under prescrip-
tion, this fact alone is not sufficient to prevent confusion which is otherwise 
like to occur. In view of the varying infrastr

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