The case of RAZO vs. RAZOFAST involves allegations of trademark infringement and unfair competition arising from the defendant's use of the mark "RAZOFAST," which closely resembles the plaintiff's mark "RAZO." The plaintiff.
Trademark Infringement and the Triple Identity Test:
The triple identity test is a fundamental principle in trademark law used to determine the likelihood of confusion between two marks. The test involves three elements: deceptive similarity of marks, identity of goods or services, and availability through the same sources, catering to the same consumer base. In the case of RAZO vs. RAZOFAST, all three elements of the triple identity test appear to be satisfied.
Deceptive Similarity of Marks:
The plaintiff's mark "RAZO" and the defendant's mark "RAZOFAST" share a high degree of visual and phonetic similarity. The only difference between the marks is the addition of the suffix "FAST" in the defendant's mark. This similarity is likely to create confusion among consumers, especially given that both marks are used in connection with the same product, rabeprazole.
Identity of Goods:
Both parties offer the same product, namely, rabeprazole. The identical nature of the goods further strengthens the argument for potential confusion among consumers who may believe that the products are affiliated or originate from the same source.
Availability and Consumer Base:
The fact that the plaintiff's and defendant's products are available at the same retail outlets and cater to the same class of consumers underscores the potential for consumer confusion. Consumers seeking rabeprazole may encounter both marks and might mistake the defendant's product for that of the plaintiff due to the similarity in marks and the presence of both products in the same retail spaces.
Trade Dress and Unfair Competition:
Apart from the trademark infringement claim, the plaintiff also alleges that the trade dress of the defendant is similar to its own. Trade dress refers to the overall visual appearance and design of a product, which can include packaging, color schemes, and other elements. In this case, if the defendant's trade dress is indeed similar to that of the plaintiff, it may contribute to the likelihood of consumer confusion, reinforcing the plaintiff's claim of trademark infringement.
Intent to Ride on Goodwill and Reputation:
The defendant's choice of "RAZO" as a prefix in the mark "RAZOFAST" raises concerns about an intent to ride on the goodwill and reputation associated with the plaintiff's mark. Such an intent suggests an effort to benefit from the plaintiff's established market presence and reputation by creating a false association between the two products.
Case Law Discussed:
Case Title: Dr. Reddys Laboratories Limited Vs Fast Cure Pharma
Date of Judgement:16.08.2023
Case No. CS Comm 436 of 2021
Neutral Citation No: 2023: DHC: 5829
Name of Hon'ble Judge: C Hari Shankar
Name of Court: Delhi High Court
Disclaimer:
Information and discussion contained herein is being shared in the public Interest. The same should not be treated as substitute for expert advice as it is subject to my subjectivity and may contain human errors in perception, interpretation and presentation of the fact and issue involved herein.
Written By: Advocate Ajay Amitabh Suman, IP Adjutor - Patent and Trademark Attorney
