Hush Category Product (Women's Hygiene Product) and Probability of Confusion
Introduction:
In the domain of intellectual property law, trademark disputes often revolve around the use of similar marks for competing products, which can lead to consumer confusion and misrepresentation. One such dispute occurred between Wipro Enterprises (the Appellant) and Himalaya Wellness (the Respondent), concerning the use of the trademark "EVECARE" for women’s hygiene products. The primary issue revolved around trademark infringement and passing off, with Himalaya Wellness arguing that Wipro’s product name was confusingly similar to their own, thereby potentially misleading consumers. This case illustrates the broader legal principles surrounding the likelihood of confusion in product markets and the protection of trademark rights.
Factual Background of the Case:
The dispute originated when Himalaya Wellness, a company renowned for its Ayurvedic products since 1930, filed a suit against Wipro Enterprises. Himalaya alleged that Wipro's use of the mark "EVECARE" for its female hygiene products, categorized under Hush Products, infringed on their registered trademark for the same name, used for their Ayurvedic medicines. Specifically, Himalaya asserted that Wipro’s products could create confusion among consumers who might associate Wipro's female hygiene product with Himalaya’s well-established Ayurvedic offerings under the same brand name.
Himalaya Wellness contended that both products targeted the same demographic – women – and that the use of the identical mark would lead consumers to believe that Wipro’s products were connected with or endorsed by Himalaya. Consequently, Himalaya sought an interim injunction to prevent Wipro from using the "EVECARE" mark.
In response, Wipro argued that their use of the mark was in relation to a distinct class of products, specifically women’s hygiene products, and therefore there was no risk of confusion with Himalaya's products, which comprised tablets and syrups for medicinal purposes. Despite Wipro’s defense, the Single Judge of the trial court granted an interim injunction in favor of Himalaya, prompting Wipro to appeal the decision.
Issue of the Case:
The central legal question before the court was whether Wipro's use of the mark "EVECARE" constituted trademark infringement and passing off, thereby justifying the continuation of the interim injunction. The court was tasked with determining if Wipro’s use of the same mark for women’s hygiene products, under the Hush Product category, was likely to cause confusion among consumers and, therefore, whether Wipro should be restrained from further use of the mark.
Key Issues:
Likelihood of Confusion: Was Wipro’s use of the mark "EVECARE" likely to confuse consumers into believing that their products were associated with or endorsed by Himalaya Wellness?
Similarity of Goods: Did the products of both companies fall within similar categories or allied goods, which would contribute to the possibility of confusion in the minds of consumers, especially since both targeted the same consumer group?
Contentions of the Parties: Appellant (Wipro Enterprises):
Distinctive Nature of Products: Wipro argued that their product, marketed under the name "EVECARE", was a cosmetic cleansing product in the women’s hygiene category, which was entirely distinct from the medicinal products offered by Himalaya under the same mark. Wipro maintained that their product was not in competition with Himalaya’s tablets and syrups, which were used for Ayurvedic medicinal purposes.
Reputation and Market Position: Wipro contended that they were a reputable company with a longstanding presence in the market and did not engage in practices that would lead to consumer confusion or deception. They argued that they were not a "fly-by-night" entity, and their entry into the female hygiene market was genuine and legitimate.
Respondent (Himalaya Wellness):
Consumer Confusion: Himalaya argued that both companies targeted the same consumer base, i.e., women, and that the use of the mark "EVECARE" by Wipro created a high risk of confusion. The similarity in the names, combined with the overlap in the target demographic, meant that consumers were likely to assume that Wipro’s product was affiliated with or originated from Himalaya.
Search Results Confusion: Himalaya provided evidence from internet search results that displayed both companies’ products when the term "EVECARE" was searched. This, they claimed, was a clear indicator of potential confusion, as consumers could not easily distinguish between the two products.
Trademark Protection: Himalaya asserted their right to protect their registered trademark, which had been in use for a considerable period, and argued that Wipro’s use of the mark amounted to passing off.
Issues Dealt with by the Court:
The court delved into multiple aspects of the case, focusing on two pivotal issues:
Likelihood of Confusion: The court had to determine whether the use of the same mark for different products was likely to mislead or confuse consumers. In this context, the court emphasized that the relevant consumer base – women purchasing hygiene products – might not carefully scrutinize the difference between Wipro's hygiene product and Himalaya’s medicinal products, thereby increasing the risk of confusion.
Similarity of Goods and Services: Another critical issue was whether Wipro’s hygiene product and Himalaya’s Ayurvedic medicines could be considered allied or related goods. The court noted that while the products were physically different, they both catered to women’s health and hygiene, a broad enough category to create an association in the minds of consumers.
Court’s Reasoning: Likelihood of Confusion:
The court agreed with the Single Judge’s finding that the likelihood of confusion was significant in this case. The court reasoned that consumers, when purchasing hush category products like women’s hygiene items, are unlikely to engage in detailed comparisons between brands, especially when both products serve related functions in the domain of women’s care.
Moreover, the court clarified that allied goods do not need to share a physical relationship but rather a connection in the minds of consumers. Since both Wipro and Himalaya’s products catered to women’s health, the average consumer might reasonably assume that Wipro’s "EVECARE" product was linked to or endorsed by Himalaya.
Final Decision:
The court ultimately dismissed the appeal filed by Wipro Enterprises, affirming the interim injunction granted by the Single Judge. The court found that Wipro’s use of the "EVECARE" mark was likely to result in consumer confusion and could amount to passing off. However, the court made it clear that its observations were based on a prima facie view, and the final merits of the case would be determined during the trial.
Key Takeaways from the Judgment:
Allied Goods Doctrine: The court reiterated that goods do not need to be identical to create confusion. If the products are connected in the minds of consumers, they may be considered allied goods, which increases the likelihood of confusion.
Consumer Confusion in Hush Products: The judgment highlights the particular vulnerability of consumers in the hush category (women’s hygiene products) to confusion, as these products are often purchased without extensive inquiry or research.
Trademark Protection: The case underscores the importance of protecting registered trademarks, particularly when the marks have been long-established and recognized in the market.
Conclusion:
The decision in this case reinforces the principle that trademark rights are designed not only to protect the interests of the trademark owner but also to safeguard consumers from confusion and deception. The court's judgment places significant emphasis on the likelihood of confusion in the context of allied products, even when the physical nature of the goods may differ. The ruling also underscores the need for companies to conduct thorough due diligence before adopting a mark that might conflict with an established brand in a related product category.
Case Citation: Wipro Enterprises Vs Himalaya Wellness; 01.09.2024: FAO (OS) (COMM) 145/2023 :2024:DHC:7544-DB:Delhi High Court: Vibhu Bakhru and Tara Vitasta Ganju, H.J.
Written by: Advocate Ajay Amitabh Suman
IP Adjutor [Patent and Trademark Attorney] United & United
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