Cadila Healthcare Ltd. v. Cadila Pharmaceuticals — 2001 (21) PTC 541 (SC)

This case is about passing off between two anti-malaria drugs: Falcitab and Falcigo. The Supreme Court set a strict test for confusing similarity in medicines, because confusion can cost lives. It listed practical factors for courts to weigh before deciding who is misrepresenting and whether buyers are likely to be misled.

• Higher care for pharma marks due to public health.
• Check visual, phonetic, and idea similarity together.
• Look at buyers, prescription context, and purchase mode.

1. Does the sale of the drug Falcigo amount to passing off against the maker of Falcitab?
2. Are the marks Falcitab and Falcigo deceptively similar for the same therapeutic use?

• Passing Off (classic trio): (i) Goodwill in the mark; (ii) Misrepresentation likely to confuse buyers; (iii) Damage due to that confusion.
• Deceptive Similarity — Cadila Checklist:
  • Nature of the marks: word/label/composite.
  • Degree of similarity: look, sound, and idea.
  • Nature, character, and performance of goods.
  • Buyer profile: literacy, care, and context (doctors/chemists/patients).
  • Trade channel and purchase mode (OTC vs prescription).
  • Surrounding circumstances relevant to confusion.

The Supreme Court did not disturb the lower courts’ interim orders. It set out clear principles for deciding passing off in pharma, stressing public health. Courts must assess similarity in sight, sound, and sense, buyer care, trade channels, and all surrounding facts. The trial court was directed to decide the suit applying these observations.

In pharma passing off, even slight phonetic similarity can be fatal. The test is the overall impression on an average buyer in real conditions—doctors, chemists, and patients with varying literacy and care. Public interest tips the scale toward avoiding confusion.

• Patient safety first: Confusing drug names can cause wrong medication.
• Drafting practice: Choose pharma marks that are far apart in look and sound.
• Litigation roadmap: Apply the Cadila checklist to build or defend a case.

Mnemonic: “See–Say–Sense, then Safety.”

1. See: Compare how the marks look.
2. Say: Compare how they sound.
3. Sense: Compare the idea they convey.

Safety check: In medicines, when in doubt, avoid confusion.

Passing Off

Common-law action preventing misrepresentation that damages another’s goodwill.

Deceptive Similarity

Similarity that is likely to confuse average buyers about trade origin.

Phonetic Similarity

When two marks sound alike when spoken, risking confusion at pharmacies.