INTRODUCTION:

A trademark is a visual symbol which can be a word, signature, name, device, label, numerals or combination of colours used by one undertaking on goods or services to distinguish it from other similar goods or services originating from a different undertaking. The marks administer under the Trademarks Act, 1999.
When an individual filling a trademark in India an indispensable requirement is finding out the trademark classification of the goods or services under which the person have to file trademark. Even when conducting a trademark search person needs to know the “trademark classification” and “trademark classes”. It groups different categories of goods and services under one trademark class. Thus, it gives the trademark registration process a definite structure. Accordingly, the applicant can choose the broad class under which their goods or service description falls. The trademark classification helps avoid this by allowing you to search for a prior trademark in the class that you want to register your trademark in India. Section 7 of the Trademarks Act, 1999 provides that the Registrar shall classify goods and services in accordance with the international classification of goods and services for the purpose of registration of trademarks. And under section 18 of the Act it requires that if any persons applying for a trademark to apply in writing in the manner that is prescribed for the registration. 

CLASS FIVE: 

The Fourth Schedule to the Trademark Rules, 2002 lays down the different trademark classes. Trademark has a total of 45 classes according to the NICE classification also known as International Certification of Goods and Services and the manufacture of goods and services are grouped into different classes. Among those 45 classes, 34 classes come under Goods section and 11 classes come under Services sections. Every class requires a different registration and while applying for the Trademark registration, it is necessary to choose the right class. Trademark search is done while selecting an appropriate class for your goods and services. This is a classification of almost 80,000 products and services. 
Trademark Class 5, is one of the 45 broad and discrete classes of trademarks and service marks, which are devised for the purpose of fast, easy registration of all trademarks and service marks in various distinct economic fields. This class of Trademark classification pertains to medicinal and pharmaceutical products, including veterinary products as well. People always use this as a description of goods and tries to cover maximum scope of products under same brand name. It includes Pharmaceutical and veterinary preparations; sanitary preparations for medical purposes; dietetic substances adapted for medical use, food for babies; plasters, materials for dressings; material for stopping teeth, dental wax; disinfectants; preparations for destroying vermin; fungicides, herbicides. This class does not include, in particular: sanitary preparations being toiletries; deodorants for personal use; supportive bandages; Meal replacements, dietetic food, and beverages not for medical or veterinary. 

CASE LAWS:

Sun Pharmaceutical Industries Ltd. vs. Anglo-French Drugs and Industries Ltd.:
Equivalent Citation: 2015(63)PTC580(Del)
The appellant is a pharmaceutical company incorporated under the Companies Act, 1956 which markets the drugs and formulations in India and other countries. The company has distinctive trademarks names for the last several years. One of the medicine markets by the appellant is oxcarbazepine under the trade market OXETOL. This trademark of the appellant was registered in India in Class 5 on 2003. 
Respondent adopted the trademark EXITOL, which the appellant came to know. The appellant wrote to the defendant for seeking monetary compensation which was declined by the respondent. The respondent contented that the mark EXITOL honestly adopted for the treatment of constipation. The product is sold in syrup and granule form and there is a difference in the mark of the appellant and that of the defendant. 
The Supreme Court laid down the test for an action for passing off on the basis of unregistered trademark generally for deciding the question of deceptive similarity the following factors to be considered: the nature of the marks, degree of resemblances between the marks, the similarity in the nature etc,. Both marks have to be seen as whole it cannot lead that any slight semblance of phonetic similarity between two marks would automatically satisfy the test of confusion to a man of average intelligence having imperfect recollection. 
It is noticed that the active ingredients of the two products are different. The product of the appellant is available in capsules and tablets and that of the respondent is available in syrups or granules. The packaging and visual representation of both the products is quite dissimilar and the purposes of both the drugs are different. And the decision held in favour of the respondent.        
 
SMS Formulations Pvt. Ltd. and Santacruz Medical Stores vs. Sahib Singh Agencies (Bom.) Limited and Ors. 
Equivalent Citation: 2012(52)PTC334(Bom)
The plaintiff has a partnership firm which is the private limited company manufacturing products under the licence of plaintiff no.2.The plaintiff has registered trademark “IBULMOL” underclass 5 and has been infringed by the defendant by manufacturing the product under trademark ‘IBUNMOL’. The plaintiff has prayed for an order of restraining the defendant from manufacturing or selling their products by passing it of as that of the plaintiff’s product. 
The High Court of the Bombay is of the opinion that the mark used by the defendant is phonetically similar to the registered trademark of the plaintiff. The comparison of the cartons would reveal that the cartons are identical. The carton of the defendants is an imitation of the carton of the plaintiffs which is registered under the Copyrights Act. A perusal of two cartons would reveal that there is a great possibility of the consumer being confused mistaking the carton of the defendants to be that of the plaintiffs. The court is of opinion that the statutory rights of the plaintiffs are being infringed and injunction needs to be granted.        
 

Research Done by - 

Sameeksha Shukla

 BB.A LL.B (Hons.) specialization in Corporate Law ( 5^th year)