BEVATAS vs BEVETEX: How Delhi High Court Overturned a Permanent Injunction Against Intas Pharmaceuticals in a Landmark Pharmaceutical Trademark Dispute
Introduction
The intersection of trademark law and public health has always been a sensitive and complex terrain for courts. When pharmaceutical companies fight over brand names, the stakes are not merely commercial — lives can potentially be at risk if wrong drugs are dispensed to cancer patients. Yet, the law cannot be stretched beyond its limits on the mere invocation of public interest, especially when the party claiming to protect public interest has itself admitted it suffered no commercial loss and produced no credible evidence of any real confusion in the marketplace. The Delhi High Court's Division Bench judgment delivered on May 29, 2026 in Intas Pharmaceuticals Limited versus Sun Pharma Laboratories Limited is a landmark ruling that settles several important questions about how trademark infringement cases involving pharmaceutical products must be tried, what evidence must be led, and how courts must assess deceptive similarity between drug brand names at the post-trial stage. The court reversed a permanent injunction that had been granted against Intas Pharmaceuticals and, in doing so, laid down important principles that will guide pharmaceutical trademark litigation in India for years to come.
Factual and Procedural Background
Intas Pharmaceuticals Limited is a large multinational pharmaceutical company operating across multiple therapeutic segments including oncology. In 2016, Intas launched an anti-cancer drug under the brand name BEVATAS. This drug contains the molecule Bevacizumab, which is a monoclonal antibody — a biological drug used as a first line of treatment for several serious cancers including colorectal cancer, ovarian cancer, cervical cancer, lung cancer, metastatic breast cancer, and recurrent glioblastoma. The drug was approved by the Drug Controller General of India before its launch, went through rigorous clinical trials, and is administered intravenously only in hospital oncology settings by trained oncology nurses under the supervision of an Oncologist. By the time this appeal was heard, BEVATAS had become the market leader among drugs containing Bevacizumab in India, with approximately 22 percent market share, having been administered to over 75,000 cancer patients with about 12,000 patients currently undergoing treatment with the drug.
The name BEVATAS was coined by Intas by combining BEVA, taken from the first part of the molecule name Bevacizumab, and TAS, derived from the corporate name INTAS.
Sun Pharma Laboratories Limited is the registered proprietor of the trademark BEVETEX, which it applied for registration back in 1983, receiving the certificate of registration in 1990 under Class 5 of the Trade Marks Register. However, Sun Pharma admittedly did not actually use the mark BEVETEX for over three decades. It began commercially using BEVETEX only in 2015 for its own anti-cancer drug, which contains an entirely different molecule called Paclitaxel. Paclitaxel is a synthetic chemical cytotoxic agent, not a biological drug. It is used as a second line of treatment — that is, only after a patient's combination chemotherapy has failed, or after a relapse within six months of adjuvant chemotherapy — and only for metastatic breast cancer. Sun Pharma's drug BEVETEX is thus fundamentally different in composition, indication, mechanism of action, and stage of treatment from Intas's drug BEVATAS.
Within just about one year of Sun Pharma launching BEVETEX in 2015, Intas launched BEVATAS in October 2016. Sun Pharma learned about Intas's trademark application for BEVATAS in October 2016 and filed an opposition before the Trademark Registry on December 27, 2016. Claiming to have gained knowledge of the actual product only in October 2017, Sun Pharma instituted a suit before the Additional District Judge, South-East District, Saket Courts, Delhi, in December 2017, being CS (COMM) No. 39 of 2021, alleging trademark infringement, passing off, unfair competition, misappropriation of goodwill and reputation, and seeking permanent injunction, damages, rendition of accounts, and costs.
The Trial Court, vide a detailed order dated September 17, 2018, dismissed Sun Pharma's application for interim injunction, holding that the marks BEVATAS and BEVETEX were structurally, phonetically, and visually different and that no prima facie case of infringement or passing off was made out in view of the distinctions in the character, mode of administration, and other distinct factors of the two drugs. This order was upheld by an Appellate Bench of the Delhi High Court on January 9, 2020, and Sun Pharma's Special Leave Petition before the Supreme Court of India was dismissed on February 14, 2020.
After completion of evidence and trial, and after the valuation of the suit's reliefs was enhanced, the matter was transferred to the Original Side IP Division of the Delhi High Court. During the trial, Sun Pharma gave up its claim for damages, rendition of accounts, and all monetary reliefs, taking the stand that it was prosecuting the suit solely in public interest and had no commercial interest. Only the prayer for a permanent injunction restraining Intas from using the mark BEVATAS was pressed before the learned Single Judge.
The learned Single Judge, by the impugned judgment dated March 28, 2026, decreed the suit in favor of Sun Pharma and permanently restrained Intas from using the mark BEVATAS, holding it to be deceptively similar to BEVETEX and likely to cause confusion in the minds of consumers. Aggrieved by this order, Intas filed the present Regular First Appeal before the Division Bench under Section 96 of the Code of Civil Procedure, 1908.
The Dispute
The core dispute before the Division Bench was whether the learned Single Judge was justified in granting a permanent injunction against Intas on the ground that BEVATAS was deceptively similar to BEVETEX and likely to cause confusion among the public. Several sub-issues arose: whether Sun Pharma's plaint was properly framed and disclosed a legitimate cause of action; which specific provision of Section 29 of the Trade Marks Act, 1999 governed the dispute; whether the two drugs were similar or dissimilar goods; whether the two trademarks were visually, structurally, or phonetically similar; whether Sun Pharma had actually led any credible evidence to prove likelihood of confusion among the relevant class of public; and whether the learned Single Judge's approach of deciding infringement purely on a visual and phonetic comparison of marks at the post-trial stage was legally sustainable.
Reasoning and Analysis of the Court
The Division Bench, comprising Justice V. Kameswar Rao and Justice Manmeet Pritam Singh Arora (who authored the judgment), examined the matter exhaustively under multiple heads.
On the vexatious nature of the plaint regarding passing off and unfair competition: The court noted that Sun Pharma's plaint was framed in the broadest possible manner, pleading multiple causes of action including trademark infringement, passing off, unfair competition, misappropriation of goodwill, and seeking monetary damages and rendition of accounts. Yet, soon after filing the suit, Sun Pharma represented before the Trial Court, in its rejoinder to the injunction application on January 29, 2018, that it had no commercial interest and was prosecuting the suit purely in public interest because Sun Pharma did not sell any medicine containing the molecule Bevacizumab. This stand was reiterated before the Appellate Court in FAO 447/2018, in the evidence affidavit of its sole witness PW-1 dated February 8, 2019, and again in cross-examination. The court held that this admission constituted a clear acknowledgment that Sun Pharma had suffered no commercial loss, no diversion of sales, and no damage to goodwill from Intas's use of BEVATAS. The court held that the dissimilarity of the two drugs' molecules was a fact known to Sun Pharma even before the suit was filed, yet it vexatiously pleaded passing off, misrepresentation, unfair competition, and monetary claims to create an illusion of a cause of action and a false sense of urgency. The court further observed that Sun Pharma ought to have restricted its suit from inception to the narrow claim of infringement based on alleged deceptive similarity, and that even at the stage of amendment of the plaint in August 2022 when the pecuniary valuation was enhanced, Sun Pharma did not delete the vexatious pleas it knew to be untenable. The court relied on ITC Ltd. v. Debts Recovery Appellate Tribunal, (1998) 2 SCC 70, and Bengal Waterproof Limited v. Bombay Waterproof Manufacturing Company and Anr., (1997) 1 SCC 99, to hold that proceeding to trial on such a plaint emboldened dishonest litigants and encouraged frivolous litigation, undermining the sanctity of the Statement of Truth under the Commercial Courts Act, 2015.
On the applicable sub-section of Section 29 of the Trade Marks Act, 1999: The court examined Sun Pharma's shifting legal positions. Before the Single Judge, Sun Pharma invoked Section 29(3) of the Act, which creates a statutory presumption of likelihood of confusion — but this presumption under Section 29(3) is only available when both the marks and the goods are identical, which falls under Section 29(2)(c). The court categorically held that the marks BEVATAS and BEVETEX are not identical, nor are the goods identical. Therefore, Section 29(2)(c) and the presumption of Section 29(3) were wholly inapplicable. The court also held that Section 29(4), which deals with dissimilar goods, was inapplicable since Sun Pharma had abandoned its plea of reputation. The court concluded that the dispute was squarely governed by Section 29(2)(b) of the Act — which applies where the defendant's mark is similar (not identical) to the registered mark and is used in relation to goods that are identical or similar to the goods covered by the registered mark — and that under this provision, the burden lay entirely on Sun Pharma to affirmatively prove likelihood of confusion among the public. The court was critical of Sun Pharma's vague and overbroad pleading of merely "Section 29" without specifying the sub-section, which the court described as inexact, intentional, and mischievous, enabling Sun Pharma to shift its legal arguments across different sub-sections at different stages.
On the evidentiary standard and Sun Pharma's failure to discharge the burden: The court emphasized that in a case where goods are not identical or closely similar, the likelihood of confusion cannot be presumed and must be proved by positive evidence. The court drew support from P. Narayanan's authoritative commentary on the Law of Trade Marks and Passing Off (Sixth Edition, 2004, paragraph 9.28), which states that where goods are not closely similar in character, evidence of witnesses is necessary to establish whether confusion is likely to occur. Sun Pharma itself had identified the relevant class of persons likely to be confused as being chemists, specifically pleading in paragraph 21(D) of the plaint that a chemist may give out the wrong drug on account of confusion or lack of stock. The court noted that Sun Pharma never even pleaded that an Oncologist might be confused at the prescription stage.
Despite identifying the chemist as the relevant class of public susceptible to confusion, Sun Pharma examined only a single witness, PW-1, who was its own Sales Manager. This witness parroted the plaint and made bald assertions about likelihood of confusion without any personal knowledge. In cross-examination, PW-1 admitted that the drug formulations of BEVATAS and BEVETEX were completely different, that the two drugs were a very different class of drugs with different indications and mode of action, that the toxicity profiles were different, and — most significantly — that there was no actual instance of confusion between the two marks on record. The only document PW-1 could point to as evidence of confusion was Ex. PW-1/9, an e-newspaper article about a 2011 incident of gross negligence by a pharmacist involving entirely different drugs — which PW-1 admitted had nothing to do with BEVATAS or BEVETEX and was merely a general example. The court held that PW-1 was not a competent witness to depose about likelihood of confusion as he belonged to a completely different class from chemists, Oncologists, and trained nurses. The court held PW-1's testimony to be unreliable and discarded it entirely. In contrast, Intas's witness DW-1 deposed that the drugs were administered under strict medical supervision in specialized oncological settings and that the possibility of confusion was negligible — testimony that remained largely uncontroverted in cross-examination.
On the learned Single Judge's approach: The court found that the impugned judgment dated March 28, 2026 determined the entire issue of infringement solely on a bare visual and phonetic comparison of the marks undertaken by the judge himself, without evaluating any of the evidence led at trial. The court noted that the learned Single Judge, while correctly setting out the governing legal principles in paragraphs 19 to 29 of the impugned judgment, proceeded directly to conclude at paragraph 28 that a likelihood of confusion existed, without adverting to any oral or documentary evidence of the parties. The court held that this approach, at the post-trial stage, was legally unsustainable. A bare comparison of marks by the court can at best constitute a prima facie view appropriate for deciding interim applications — it cannot form the basis of a final decree of permanent injunction after a full trial. The court noted that the impugned judgment effectively imported the statutory presumption under Section 29(3) of the Act without even acknowledging it, despite that presumption being wholly inapplicable on the facts of the case. The court also noted that after the interim injunction was denied and that denial was confirmed right up to the Supreme Court, the learned Single Judge would have needed clear and cogent evidence emerging at trial to form a contra view — but Sun Pharma had produced no new documentary or oral evidence from any relevant member of the public after the dismissal of the interim injunction.
On the similarity of the two drugs: The court, relying on the undisputed comparative table of the two drugs set out in paragraph 9.9 of the impugned judgment itself, found that BEVATAS and BEVETEX were wholly dissimilar drugs. BEVATAS is a biological rDNA drug containing Bevacizumab, a monoclonal antibody, while BEVETEX is a synthetic chemical drug containing Paclitaxel. One is prescribed as the first line of treatment; the other only after failure of chemotherapy. Their indications are different, their dosage regimens are different, their infusion durations are different (90 minutes initially for BEVATAS versus 30 minutes for BEVETEX), their reconstitution procedures are different, and their side effect profiles are starkly different. The only overlap in indication is metastatic breast cancer (mBC), but even that overlap is not real because BEVATAS is given to mBC patients as a first line treatment while BEVETEX is given only when those patients have failed to respond to chemotherapy — meaning the same patient would never receive both drugs at the same time or in substitution for each other. Both parties had admitted that the two drugs were not therapeutic substitutes. The price difference — Rs. 25,990 for 100mg of BEVATAS versus Rs. 12,500 for 100mg of BEVETEX — was another factor militating against confusion. The court held that drugs that are not interchangeable, do not serve the same therapeutic purpose, and are not perceived by Oncologists, chemists, or patients as alternatives, are dissimilar for all purposes of trademark law. The court held that the mere fact that both drugs fall in the Nice Classification of medicinal and pharmaceutical preparations in Class 5 does not make them similar goods. The court relied on factors (c) and (d) of paragraph 35 of the Supreme Court's judgment in Cadila Health Care Ltd. v. Cadila Pharmaceuticals Ltd., (2001) 5 SCC 73 (Cadila-2001), which require assessment of the nature, character, and performance of the goods.
On the phonetic and visual similarity of the trademarks: Applying the anti-dissection rule — meaning the marks must be compared as a whole — the court found that BEVATAS and BEVETEX were not phonetically or visually similar. The court observed that the prefix BEV and BEVA were publici juris in the pharmaceutical industry for drugs containing the molecule Bevacizumab. It was undisputed that at least seven other pharmaceutical companies — Zydus (ZYBEV), Reliance Lifesciences (BEVACIREL), Hetero Drugs (CIZUMAB), Lupin (BEVAZZA), Emcure (BEVAREST), Abbott (BEVACIZAB), and Cadila Pharma (BEVARO) — marketed drugs containing Bevacizumab with trademarks using BEV or BEVA as prefix or suffix. Sun Pharma itself had no objection to any of these marks and acknowledged it claimed no exclusive right over BEV or BEVA. This meant that the distinctive portion of the marks to be compared were the suffixes: TAS in BEVATAS and ETEX in BEVETEX. The court noted that the molecule Bevacizumab is an International Non-Proprietary Name (INN) and is pronounced as beh-vuh-SIH-zoo-mab, and that given 20 pharmaceutical companies were making drugs with this molecule, Oncologists and chemists were well acquainted with the name. The fourth letter in BEVATAS is A (a vowel) and the fourth letter in BEVETEX is E (a vowel), and these vowels create distinctly different phonetic modulations — the word BEVATAS is likely pronounced as beh-vuh-tas while BEVETEX is pronounced as beh-veh-tex. The suffixes TAS and TEX are phonetically distinct and produce entirely different auditory impressions. The court also noted the suffix TAS was derived from Intas's corporate name and was used in approximately 40 other registered Intas trademarks such as LOMITAS, SPARTAS, CLARITAS, RUMENTAS, etc. — a fact that Oncologists and chemists were aware of. The court relied on the judgment in Astrazeneca UK Limited & Anr v. Orchid Chemicals & Pharmaceuticals Ltd., ILR (2007) I Delhi 874 (MERONEM/MEROMER), which held that due emphasis must be given to the uncommon letters in rival pharmaceutical marks once publici juris syllables are set aside. Considering the distinct suffixes ATAS versus ETEX, the court held the marks were not visually or structurally similar either, noting that the packaging of the two drugs was also completely different in colour scheme, font, layout, and overall visual presentation, with both products prominently displaying their respective active molecules — Bevacizumab and Paclitaxel — in large font on the packaging itself.
On the governing principles for infringement: The court synthesized the law from three landmark judgments. In Cadila Health Care Ltd. v. Cadila Pharmaceuticals Ltd., (2001) 5 SCC 73, the Supreme Court had identified seven factors for determining deceptive similarity of pharmaceutical marks — the nature of the marks, the degree of resemblance, the nature of the goods, the similarity in nature, character and performance of the goods, the class of purchasers and their education and degree of care, the mode of purchasing, and any other surrounding circumstances — emphasizing that weightage must be given to each factor depending on the facts of the case. In Kaviraj Pandit Durga Dutt Sharma v. Navaratna Pharmaceutical Laboratories, 1964 SCC OnLine SC 14, the Supreme Court held that in an infringement action, if the marks bear close similarity, no further evidence is required, but if they are merely similar (not an imitation), the plaintiff must establish that the mark used by the defendant so nearly resembles the plaintiff's registered mark as to be likely to deceive or cause confusion, and that deceptive similarity is essentially a question of fact. In Gufic Ltd. v. Clinique Laboratories, LLC & Anr., 2010 (43) PTC 788, a Coordinate Bench of the Delhi High Court had culled out that the test of deceptive similarity in infringement cases is the same as in passing off actions where marks are not identical, and five principles must be applied including overall structural and phonetic similarity and whether both marks convey the same idea. The court synthesized these authorities to hold that infringement adjudication in cases of similar (not identical) marks proceeds in two stages — a threshold comparison of marks by the court itself to assess degree of visual, structural, and phonetic resemblance, and if the marks are not found wholly dissimilar or nearly identical imitations, a second evidence-based stage where the court must assess deceptive similarity and likelihood of confusion on the basis of all the Cadila-2001 factors and the evidence led at trial.
On surrounding circumstances and public interest: Examining the surrounding circumstances in terms of the Cadila-2001 factors, the court found that since both drugs are Schedule H drugs requiring an Oncologist's prescription and administered only in oncology clinics by trained nurses under Oncologist supervision, there was little scope for casual or uninformed consumer choice at any stage — prescription, dispensing, or administration. The high price of both drugs (over Rs. 12,500 even for the smaller dose) meant purchasers would exercise heightened caution. The prominent display of the molecule name on the packaging ruled out confusion even for persons with imperfect recollection. The court also rejected Sun Pharma's belated oral submission before it that drugs could be sold over the counter without a prescription, noting this had not been pleaded and was not proved. On the question of public interest, the court found Sun Pharma's claim to be a red herring. The court held that Sun Pharma had no valid cause of action at all — it suffered no loss of revenue, no damage to goodwill, and its mark's distinctiveness was not eroded in any demonstrable way. The court concluded that Sun Pharma pursued the litigation to protect its purely commercial interest in the mark BEVETEX under the guise of public interest. The court also noted that after nearly ten years of concurrent use of both marks from 2016 to 2026, not a single instance of actual confusion in the market had been reported or proved.
On the case law cited by Sun Pharma: The court carefully distinguished each precedent cited by Sun Pharma. United Biotech Pvt. Ltd. v. Orchid Chemicals & Pharmaceuticals Ltd., 2012 SCC OnLine Del 2942 (FORZID/ORZID), was a rectification proceeding involving the same drug molecule Ceftazidime where the risk arose from direct substitutability of identical therapeutic agents with differing dosages — entirely unlike the present case. Sun Pharma Laboratories Limited v. BDR Pharmaceuticals International Pvt. Ltd. & Anr., 2020 SCC OnLine Del 623 (LABEBET/LULIBET), was a final judgment where parties elected not to lead oral evidence, and the drugs could be self-administered — again, an entirely different scenario. Novartis AG v. Crest Pharma Pvt. Ltd. and Anr., 2009 SCC OnLine Del 4390 (SECEF/CECEF), was an interim injunction order. Nutrica Pusti Healthcare Pvt. Ltd. v. Morepen Laboratories Ltd., 2021 SCC OnLine Del 263, was also an interim order. Glenmark Pharmaceuticals Ltd. v. Sun Pharma Laboratories Ltd., 2024 SCC OnLine Del 2707 (ISTAMET/INDAMET), also relied upon by Sun Pharma, was a prima facie finding by a Division Bench in an interim matter, and importantly involved self-administered diabetes drugs where patients themselves managed the medication — starkly different from hospital-administered oncology drugs. The court also referred with approval to the Division Bench judgments in Sun Pharmaceuticals Laboratories Ltd. v. Hetero Healthcare Ltd. and Another, 2022 SCC OnLine Del 2580 (LETROZ/LETERO), Sun Pharmaceuticals Industries Ltd. v. Anglo French Drugs & Industries Ltd. & Anr., 2014 SCC OnLine Del 4716 (OXETOL/EXITOL), Schering Corporation & Ors v. Alkem Laboratories Ltd., 2009 SCC OnLine Del 3886 (TEMODAL/TEMODAR vs TEMOKEM/TEMOGET), and Astrazeneca UK Limited & Anr v. Orchid Chemicals & Pharmaceuticals Ltd., ILR (2007) I Delhi 874 (MERONEM/MEROMER), all of which had held that despite phonetic similarities, no likelihood of confusion was found given the specialized nature of the drugs, therapeutic use, and modes of administration. The court noted that the judgment in Modi-Mundipharma Pvt. Limited v. Specialty Meditech Pvt. Ltd & Anr., 2025:DHC:5039-DB, supported the principle that where marks are an imitation and goods are identical, no further evidence is needed — but that this principle had no application where, as here, the marks were not an imitation and the goods were dissimilar.
Final Decision of the Court
The Division Bench allowed the appeal and set aside the impugned judgment dated March 28, 2026. The permanent injunction granted against Intas Pharmaceuticals was vacated. The suit filed by Sun Pharma was dismissed. The court found in favor of Intas on Issues 3, 4, 9, and 10 (relating to infringement, likelihood of confusion, proprietorship of BEVATAS, and honest adoption), and set aside the findings of the Single Judge on Issues 7 and 8 as well. The court awarded costs of the suit and the appeal in favor of Intas against Sun Pharma, directing Intas to file its bill of costs within 30 days, with the matter of quantum referred to the Taxation Officer to assess actual costs, payable by Sun Pharma within eight weeks of determination. Representatives of Intas were directed to appear before the Taxation Officer on July 13, 2026.
Points of Law Settled in the Case
This judgment establishes a number of important legal principles. At the post-trial stage in a trademark infringement suit under Section 29(2)(b) of the Trade Marks Act, 1999, where the marks are similar but not identical and the goods are similar but not identical, the court cannot grant a permanent injunction based solely on its own visual and phonetic comparison of the marks — an evidence-based assessment of likelihood of confusion among the relevant class of public is mandatory. The statutory presumption of likelihood of confusion under Section 29(3) is available only when both the marks and the goods are identical under Section 29(2)(c); it cannot be imported into cases falling under Section 29(2)(b). The mere fact that two drugs fall in the same Nice Classification — Class 5, medicinal and pharmaceutical preparations — does not make them similar goods for the purposes of trademark infringement if they are not interchangeable, do not serve the same therapeutic purpose, and are not perceived by the relevant class of professionals as alternatives. Where the plaintiff in a pharmaceutical trademark suit has identified a specific class of persons (such as chemists) as being susceptible to confusion, it must examine witnesses from that class; testimony by the plaintiff's own sales representative is not a substitute. The prefix BEV/BEVA is publici juris in the pharmaceutical trade for drugs containing the molecule Bevacizumab, and the court must give primacy to the distinctive, uncommon parts of rival marks when making a comparison. The deliberate filing of a vexatiously overbroad plaint incorporating causes of action the plaintiff knows to be untenable — such as passing off and misappropriation of goodwill when the plaintiff itself admits no commercial loss — is an abuse of process, and courts should not permit such plaints to proceed to trial. Trademark infringement litigation driven by commercial interest in protecting a mark cannot be dressed up as public interest litigation merely by abandoning monetary claims.
Case Details
Title: Intas Pharmaceuticals Limited Vs. Sun Pharma Laboratories Limited
Date of Order: May 29, 2026
Case Number: RFA(OS)(COMM) 10/2026 with CM APPL. 21698/2026
Neutral Citation: 2026:DHC:4879-DB
Name of Court: High Court of Delhi at New Delhi (Original Side, Division Bench)
Names of Hon'ble Judges: Hon'ble Mr. Justice V. Kameswar Rao and Hon'ble Ms. Justice Manmeet Pritam Singh Arora (Judgment authored by Justice Manmeet Pritam Singh Arora)
Disclaimer: Readers are advised not to treat this as substitute for legal advice as it may contain errors in perception, interpretation, and presentation.
Written By: Advocate Ajay Amitabh Suman, IP Adjutor [Patent and Trademark Attorney], High Court of Delhi
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Headnote
Intas Pharmaceuticals Limited v. Sun Pharma Laboratories Limited — 2026:DHC:4879-DB — Delhi High Court Division Bench — RFA(OS)(COMM) 10/2026 — Decided May 29, 2026
Trade Marks Act, 1999 — Section 29(2)(b), Section 29(2)(c), Section 29(3), Section 29(4), Section 2(1)(h) — Pharmaceutical Trademark Infringement — Post-Trial Standard — Likelihood of Confusion — Evidentiary Burden — Deceptive Similarity — Publici Juris Prefix.
Held: In a trademark infringement suit under Section 29(2)(b) of the Trade Marks Act, 1999 involving similar but not identical marks and similar but not identical pharmaceutical goods, the court cannot at the post-trial stage grant a permanent injunction based solely on its own visual and phonetic comparison of the marks. An evidence-based assessment of likelihood of confusion among the relevant class of public is mandatory. The statutory presumption of likelihood of confusion under Section 29(3) is available only when both marks and goods are identical under Section 29(2)(c); it cannot be applied to Section 29(2)(b) situations. Two pharmaceutical drugs are not similar goods merely because they fall in Nice Classification Class 5 if they contain different molecules, treat different cancers, are prescribed at different stages of disease, are not interchangeable, and are not perceived as substitutes by Oncologists, chemists, or patients. The prefix BEV/BEVA, being derived from the International Non-Proprietary Name Bevacizumab and used by multiple manufacturers, is publici juris in the pharmaceutical trade; emphasis must be placed on the distinctive uncommon parts of rival marks — here, the suffixes TAS and ETEX — which are phonetically and visually distinct. Sun Pharma's witness PW-1, a sales representative with no direct knowledge of the relevant class of public (chemists, Oncologists, trained nurses), was not a competent witness to prove likelihood of confusion. The plaint was vexatiously framed to include causes of action for passing off and misappropriation of goodwill that Sun Pharma knew to be untenable prior to filing the suit, constituting an abuse of process. Permanent injunction set aside; suit dismissed with costs. (Cadila Health Care Ltd. v. Cadila Pharmaceuticals Ltd., (2001) 5 SCC 73; Kaviraj Pandit Durga Dutt Sharma v. Navaratna Pharmaceutical Laboratories, 1964 SCC OnLine SC 14; Gufic Ltd. v. Clinique Laboratories, LLC & Anr., 2010 (43) PTC 788; Astrazeneca UK Limited & Anr v. Orchid Chemicals & Pharmaceuticals Ltd., ILR (2007) I Delhi 874 — Relied Upon.)
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