The Delhi High Court has ordered in favour of the Registrar of Trade Mark's decision to refuse the objection of drug major Abbott against approving a trademark Mebufen for Himachal Pradesh-based Meridian Medicare's pain killer drug.
Abbott raised opposition against the Trade Mark approval for Mebufen alleging that the trademark is similar to its analgesic brand Brufen.
The Registrar of Trademarks has, in June 2022, refused the objection by Abbott while considering the trade mark application by Meridian Medicare for the mark Mebufen under Class 5 as a word mark for medicinal and pharmaceutical preparations. The company approached the High Court challenging this order.
The Court observed that while determining the issue of competing marks, the marks are to be seen as a whole and not individual components or letters and the question of confusion has to be approached from the point of view of a man of 'average intelligence and imperfection recollection'.
While in cases where the competing marks concern medicinal products, the degree of scrutiny should be of a higher level considering the public interest involved, this cannot detract from the basic principles for determining deceptive similarity.
Justice Amit Bansal, in an order on October 22, said that there is no structural or phonetical similarity between the marks Brufen and Mebufen and they are quite dissimilar without creating any confusion while pronounced by a person of average intelligence.
"The rival marks have different prefixes i.e., “BRU” and “MEBU”, which are strikingly dissimilar. The common suffix “FEN” used in both marks, is derived from the chemical element “Ibuprofen” which is used in both medicines. Therefore, the petitioner cannot claim exclusivity over “FEN”," observed the Judge.
While Abbott has referred to the previous judgements related to competing marks of Brufen and Crofen, and Indamet and Istamet, the Court said that the judgements would not come to the aid of the company since there is a clear element of structural and phonetic similarity between the competing marks in those matters. This is not discernible in the marks that are the subject matter of the appeal, added the Judge.
Meridian Medicare filed the application for the trade mark in the year 2005, claiming use of the mark since April 1, 1988. Abbott filed its notice of opposition in December, 2006.
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