Win-Medicare Ltd. v. DUA Pharmaceuticals (P) Ltd.
Are “DICLOMOL” and “DICAMOL” so close that ordinary buyers may get confused? If yes, should the Court stop the use at once?
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Quick Summary
Win-Medicare used the drug mark DICLOMOL. DUA began using DICAMOL. The Delhi High Court compared the two as an average buyer would and found a real risk of confusion. Applying Order XXXIX CPC (prima facie case, balance of convenience, irreparable harm), the Court restrained DUA from using DICAMOL or similar marks.
Issues
- Are DICLOMOL and DICAMOL so similar that consumers and traders are likely to be confused?
- Do Plaintiffs have a right to stop the Defendants from using DICAMOL through an interim injunction?
Rules
- Order XXXIX Rules 1 & 2 CPC: Interim injunction needs (i) prima facie case, (ii) balance of convenience, (iii) irreparable injury.
- Pianotist Test (Lord Parker): Compare marks by look, sound, and idea from the view of an average person with imperfect recollection.
- Pharma context: even small confusion can harm public health; stricter approach to similarity.
Facts (Timeline)
view1988: Plaintiff registers and markets anti-inflammatory drug as DICLOMOL; gains reputation and approvals.
1995: Plaintiff discovers DICAMOL in the market; issues notices fearing confusion and harm.
Response: Defendant says colour/batch differences remove confusion; denies similarity.
Suit & Hearing: Plaintiffs seek permanent and interim injunction before the Delhi High Court.
Arguments
Appellant / Plaintiff
- DICAMOL is visually and phonetically close to DICLOMOL; likely confusion.
- Decades of goodwill; misuse harms reputation and patients.
- Injunction justified under Order XXXIX—urgent protection needed.
Respondent / Defendant
- Marks differ; packaging/colour/batch numbers avoid confusion.
- No intent to ride on Plaintiff’s reputation.
- Injunction would cause greater hardship to the Defendant.
Judgment
Injunction GrantedThe Court held the Plaintiffs showed a prima facie case. Balance of convenience and risk of irreparable injury were in their favour. Using the Pianotist test, the Court found likely confusion. Defendants and related authorities were restrained from manufacturing, selling, or marketing under DICAMOL or similar names.
- Public interest in drug safety supported an immediate restraint.
- Minor packaging differences do not cure name-level similarity.
Ratio Decidendi
Where drug marks are phonetically/visually close, likely confusion is enough to justify an injunction. Under Order XXXIX CPC, if the Plaintiff shows a strong prima facie right and risk of irreparable harm, the Court must protect the mark at once.
Why It Matters
- Sets a strict standard for pharma names—patient safety first.
- Confirms swift relief using Order XXXIX when confusion is likely.
- Reinforces the Pianotist approach for deceptive similarity.
Key Takeaways
- Pharma marks need wider distance: sound + sight + idea.
- Order XXXIX: show prima facie, balance, irreparable harm.
- Packaging changes rarely fix name confusion.
- Prefixes/suffixes in drug names can mislead—test rigorously.
- Public interest strengthens injunctions in medicines.
Mnemonic + 3-Step Hook
P-I-L-L — Phonetics, Idea, Look, Loss (irreparable).
- Hear it: Say both names aloud—do they sound close?
- See it: Compare spelling/structure for average buyers.
- Weigh it: Apply Order XXXIX—grant relief if harm looms.
IRAC Outline
Issue
Is DICAMOL deceptively similar to DICLOMOL, warranting an interim restraint?
Rule
Pianotist similarity test; Order XXXIX—prima facie, balance, irreparable injury.
Application
High phonetic/visual closeness; drug context heightens risk to public.
Conclusion
Interim injunction granted; use of DICAMOL restrained.
Glossary
| Term | Simple Meaning |
|---|---|
| Deceptive Similarity | Two marks are so close that ordinary people may think they come from the same source. |
| Pianotist Test | Compare look, sound, and idea of marks as an average person would. |
| Order XXXIX CPC | Law allowing temporary court orders to prevent harm before trial. |
| Prima Facie Case | Basic, first-look proof showing a real legal claim. |
| Irreparable Injury | Harm that money later cannot fully fix. |
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