ILNS: The Bombay High Court on Wednesday dismissed a petition filed by Cutis Biotech seeking an interim injunction against the Serum Institute of India from using the trademark Covishield.
A Division Bench of Justice Nitin Jamdar and Justice C.V. Bhadang said, “A temporary injunction directing the Serum Institute to discontinue the use of mark Covishield for its vaccine will cause confusion and disruption in the vaccine administration programme of the state.
“Covishield is a vaccine to counter Coronavirus is now widely known. In this case, thus, the grant of an injunction would have large scale ramifications, traversing beyond the parties to the suit,” noted the Court.
Cutis Biotech and the Serum Institute have applied for registration of trademark Covishield. However, their applications are pending in the Trademark Office. Cutis Biotech filed a suit before a Commercial Court at Pune and an interim application, seeking to restrain the Serum Institute from using the mark Covishield, invoking the law of passing off.
The Court rejected the contention of the appellant on the ground that neither Cutis Biotech had earned any goodwill, nor has there been any dishonest deception by the Serum Institute to divert the business of Cutis Biotech, as the products of the two are different and does not create any confusion in the minds of the consumers.
Aggrieved by the said order, the appellant preferred an appeal before the Bombay High Court.
Cutis Biotech pleaded to be the prior user, having applied for registration of this trademark on 29 April, 2020, in respect of sanitiser, liquid antiseptic, disinfectant and other related products. The Serum Institute countered that it coined the mark Covishield in March, 2020 itself and that on 6 June, 2020, when it applied for registration of the trademark, it was widely known in the media.
The Court observed that there is adequate evidence to show prior adoption and user by the Serum Institute, along with its continuous use, without a break.
Furthermore, there is a chain of events forming a sequence for the development of the Covid-19 vaccine using the trademark. The Court further observed that Cutis Biotech failed to prove that it has established sufficient goodwill regarding the trademark.
On the point of contention that there is a likelihood of confusion between the products of Cutis Biotech and Serum Institute, the Bench was in consonance with the decision of the District Court.
“The sale of disinfectant or hand sanitiser, though it may relate to the same field, that is health care products, cannot be said to cause confusion in the mind of average consumers. It will be too far-fetched to hold that there will be confusion in the average consumers’ minds between the use of a trademark in a Government administered vaccine at designated places and over the counter sanitiser products. Visually also, the products are different,” the Bench noted.
Another argument of the appellant was related to future damage that would be caused to its business because the suppliers have stopped supplying goods to Cutis Biotech, owing to the use of the mark Covishield by Serum Institute. To this, the Court opined that the conduct of the appellant was not bonafide, as it applied for registration of the trademark Covishield for vaccines after publication by the Ministry of Health, referring Covishield vaccine of the Serum Institute.
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The Court, while dismissing the appeal, remarked, “The appellate court will not interfere with the exercise of discretion of the trial court and substitute it unless the discretion of the trial court is arbitrary or perverse or where the trial court has passed an order contrary to the settled principles of law governing injunctions.”