According to Dr. Kalyan C. Kankanala “A Trademark is a company’s persona and identity in the marketplace”.

A trademark is a mark or symbol identifiable or attached with the goods so that they can be distinguished from other types of similar goods. Trademarks help the consumers to identify goods with a particular trader. A trademark can be a label or a picture or combination of colors which is applied to the goods which acts as its identity. It portrays the quality of goods in the minds of the consumers and with the passage of time, that mark may become a well-known name. (1)

Trademark plays a very pivotal role in giving a business its identity and goodwill. Similarly, trademark on one hand helps the business to form a successful goodwill and on the other hand it is susceptible of being infringed or misused. Thus, it is very important that it is to be protected from being misused by the fraudulent people who use a mark /logo which is very similar or closely resembles to the original trademark. This creates confusion in the minds of the consumers. (1)

 “Deceptively similar” trademark is one of the ways by which an existing trademark can be infringed or misused. Consumers thus cannot differentiate between a genuine trademark product and a deceptively similar trademark product.

In simple words, deceptively similarity of marks can also be defined as similarity between the trademarks which can likely deceive the public of average intellect to believe that the mark in question is in some way or the other linked to the registered or a well-known trademark.

The deceptive similarity of trademarks creates the risk that the average consumer will think that two trademarks come from the same undertaking or that it represents two undertakings which have a relationship (economic or legal).

Various factors that are considered in determining whether the mark is deceptively similar or not are the nature of goods, trade channels, class of mark, and targeted customers. Visual representation is an important consideration in determining the deceptive similarity. (2)

This article will discuss the consumer in trademarks infringement cases in the case of pharmaceutical products.

In an era of global and local competition, consumers can easily become confused with a brand’s origin or cultural identity. Consumer confusion has long been considered a central issue in trademark infringement cases.

An issue which often arises in trademark infringement actions involves the category of persons who must be confused by the similarity in the marks. The perception of the trademarks by the average consumer of the goods or services in question plays a decisive role in the global appreciation of the likelihood of confusion. The test is generally phrased in terms of the likelihood of confusion by the average consumer of the goods, buying under the normally prevalent conditions of the market, and giving the attention such purchasers usually give in buying that class of goods (3). The average consumer is deemed to be reasonably well- informed and reasonably observant and circumspect. However, the average consumer normally perceives a trademark as a whole and does not analyze its various details.

The confusion of goods in the field of medicines and pharmaceuticals has a greater potential to cause harm than the confusion of ordinary goods. For example, a product intended for external use may be mistakenly purchased for internal use, and its use results in severe consequences. In addition, some medicinal products may be purchased directly by the consumer, while others may be available only by prescription. With such varied methods of purchase and use attached to medicines and pharmaceuticals, and with such a potential for harm resulting from confusion, in infringement actions it is necessary to carefully examine each stage in the offering, ordering, sale, and use of these products." (3)

Accordingly, The Courts differed among themselves about determining the consumer of pharmaceutical products (4&5), is he the ordinary patient consumer, or the doctor and pharmacist?

Because these products will often require a doctor’s prescription to be sold and are delivered to consumers in pharmacies, some considered that the relevant public includes not only the average consumer or end user, but also healthcare professionals—that is, the doctors who prescribe the medicinal products as well as the pharmacists delivering them. (6) 

For those in cases involving goods sold only on prescription, confusion is considered less likely than when products move competitively through the same trade channels.

 They have looked to the confusion not only of consumers, but also of physicians and pharmacists, particularly when the goods are dispensed by prescription only.  The skill of the physicians and pharmacists is considered in determining the likelihood of confusion. Since the purchasers in these cases are professionals, they fall outside the category of average, unwary purchasers, and are held to a higher standard of ability to distinguish between goods. However, it is recognized that these professionals are not immune to confusion or mistakes, and the marks must be sufficiently distinguishable to avoid likelihood of confusion. (2)

As for other courts (7), the test of confusion must be looked upon from the perspective of a customer of average intelligence and imperfect recollection and a stricter approach needs to be applied in cases where the products are pharmaceuticals and extra care must be taken in the trademark involving medicinal products to prevent any type of confusion among the public. (8) & (9)

When it comes to deceptive similarity between two medicinal or pharmaceutical products, a stricter approach is adopted (9). The aim is to not leave any scope for confusion in the minds of buyers as even a bit of confusion could have disastrous impact on health and lives. It could cause loss to the goodwill of the company or manufacturer as well as to the public health. A bit of confusion in medicinal products could have fatal results affecting human lives. It was held that when it comes to pharmaceutical or medicinal products, strict precautions must be taken to not leave even the slightest possibility of confusion. (2) & (8)

As the deception caused due to the similarity in cases of pharmaceutical products may have grave consequences and even prove to be fatal, and since Physicians and Pharmacists have good knowledge in their field does not imply that they are also known as to marks and immune from getting deceived by a similar deceptive mark, and as even the drugs are sold under the prescription would not be sufficient to prevent confusion, thus greater protection is required than in the ordinary cases. The stricter approach followed by the courts taking into consideration even the minute chances of confusion or deception associated with the use of deceptively similar marks on pharmaceutical products and judging deceptive similarity from the perspective of a consumer of average intelligence and imperfect recollection would appear to be the right one especially when considering the wellbeing of consumers.

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1-Neetu.B. Shambharkar. Notion of Deceptive Similarity under Trademark Law with Reference to Landmark Cases in India: A Legal Insight. International Journal of Law Management &Humanities Vol 3 Iss 6 – 2020.

2-Mr. Ankit Chaudhary: Deceptive Similarity of in case of Pharmaceutical Products:  December 14, 2017, IPLF India.

3-Wayne A. Johnson: Prescription Pharmaceutical Products: A More Stringent Standard of Trademark Infringement. Southwestern Law Journal vol.26 p 638.

4- Chavanne et Burst – Droit de la Proprieté Industruelle,Précis Dalloz ,1980 n°813 et 814 p.504 et n°817 p.507.

5-Juris – Classeurs, Editions techniques, Marques , Robert Plaisant,n°33 et n°37.

6- Paul Maeyaert and Jeroen Muyldermans: Likelihood of Confusion In Trademark Law: A Practical Guide Based On The Case Law In Community Trademark Oppositions From   2002 TO 2012 The Trademark Reporter v 103 n° 5 p 1032. 

7-Hon’ble Supreme Court of India case of Cadila Health Care Ltd. V Cadila Pharmaceuticals

8-Umesh Puri and Ruchi Sarin: Stricter approach to similarity in pharma trademark cases - India Business Law Journal 21 August 2020.

9- Court of first instance of Beirut- Fourth Chamber of Commerce – Decision n°76 – 31/3/ 1994 case of Dola lands vs Bristol Company.