‘Deceptive Similarity’ in Medicinal Products

Marks registered under the statute are termed as protected marks, but even the unregistered mark attains protection by virtue of the common law remedy of passing off. The fundamental aspect on which passing off action is based is to protect the rights of the trademark holder who is prior in time to use it. Once the mark attains reputation, rival traders trail up with similar or deceptively similar marks. The parameters adopted by the court in determining whether a mark is deceptively similar differ based on the nature of goods, marks class of purchaser etc.

It is often seen that the Court adopts stringent provisions while dealing with deceptive similarity in medicinal preparations. The expression ‘deceptively similar’ is defined in section 2(1) (h) of the Trademarks Act, 1999. A mark shall be deemed to be deceptively similar to another mark, if it so nearly resembles that other mark as to be likely to deceive or cause confusion. The mark is considered as deceptively similar even if