Average Intelligence & Imperfect Recollection of a Customer - Criterion Determining Passing-Off

The Supreme Court has expressed and rightly so in Cadila Health Care Ltd. versus Cadila Pharmaceuticals Ltd. (2001) SC that while dealing with cases in relation to passing off, 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 an ordinary consumer to confuse one product for another due to similarity of marks and other surrounding factors but when 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 because there may be a possibility that the consumer is an unwary purchaser of average intelligence and imperfect recollection who may have absolutely no knowledge of English language or of the language in which the