Himalaya Wellness Company & Ors v. Wipro Enterprises Private Limited

Himalaya Wellness Company & Ors v. Wipro Enterprises Private Limited

2023 SCC Online Del 4035

Decided on 12-7-2023

 Background

The plaintiffs have been involved in manufacturing and distributing Ayurveda medicaments and preparations since 1930. They offer various products under the brand name "Himalaya," including personal care, pharmaceuticals, nutrition, wellness, animal health, and baby care. They also manufacture and sell an Ayurveda proprietary medicine under the marks 'EVECARE' and 'EVECARE FORTE', which is used as a uterine tonic for women. In 1997, the plaintiffs obtained registration of the mark 'EVECARE' in Class 5 on a 'proposed to be used' basis in respect of medical and pharmaceutical preparations.

The defendant company is a part of the Wipro conglomerate, founded in 1945. The defendant manufactures and sells various consumer goods such as personal wash products, skin care products, toiletries, and wellness products. In 2022, the plaintiffs discovered that the defendant had obtained registration of the mark 'EVECARE' in Class 3 on a 'proposed to be used' basis in respect of cosmetic products.

The plaintiffs issued a cease-and-desist notice to the defendant, calling upon them to stop using the mark 'EVECARE', but the defendant refused to comply with the demand. The plaintiffs claim that the defendant uses the identical mark 'EVECARE' as the plaintiffs about products meant to promote female menstrual health, causing confusion in the trade and the public. As a result, the plaintiffs have filed a suit and an application seeking interim injunction.

Analysis, Law, and Decision

In a recent court case, the court relied on the Syed Mohideen v. P. Sulochana Bai case to establish that an action for passing off would still be maintainable even if the marks of the plaintiffs and the defendant were both registered. Additionally, the court relied on other cases such as Cadila Health Care Ltd. v. Cadila Pharmaceuticals Ltd., Satyam Infoway v. Siffynet Solution, and V Guard Industries v. Crompton Greaves Consumer Electricals, to opine that the plaintiffs had established a case of passing off.

The plaintiffs adopted the mark ‘EVECARE’ about its ayurvedic medicines in 1997, whereas the defendant adopted the same mark in November 2020 about its ‘vaginal wash’. The products of the plaintiffs had been on the market since 1998, while the product of the defendant was launched around August 2021. The court opined that the adoption of the registered trademark of the plaintiffs by the defendant was not bona fide and amounted to misrepresentation.

The court further noted that the products bear identical trademarks about similar goods, and a consumer who comes across both the product of the plaintiffs and the product of the defendant at the same time was likely to get confused and would associate the product of the defendant with that of the plaintiffs or vice versa. The court also observed that the products of the plaintiffs and the defendant pertained to the menstrual and reproductive health of women and would, therefore, fall in the category of ‘hush products’.

Based on these observations, the court opined that a prima facie case of passing off was made out on behalf of the plaintiffs. The balance of convenience was also in favour of the plaintiffs and against the defendant, as the product of the defendant had been launched only about 1.5 years back and had limited sales, while the product of the plaintiffs had been in the market for 24 years and had significant sales.

Therefore, the court restrained the defendant from manufacturing, selling, offering for sale, advertising, directly or indirectly dealing in any manner with regard to any products and services, including but not limited to their female hygiene and menstrual health products under the mark ‘EVECARE’ and/or any other mark which was deceptively similar to the plaintiffs’ registered ‘EVECARE’ mark till the final adjudication of the suit.

Conclusion:

The court's decision in Himalaya Wellness Company & Ors vs. Wipro Enterprises Private Limited highlights the significance of safeguarding trademarks. The case reinforces the need for companies to conduct thorough searches before adopting and registering marks. The interim injunction granted in favour of Himalaya Wellness Company sets a precedent for the protection of established trademarks, emphasizing the potential for confusion in the market and the importance of maintaining the integrity of well-established brands.