Copying is not actionable at law if it stops short of infringement or passing off. Imitation, after all, is one form of flattery.

The likelihood of confusion has to be examined from point of view of a customer of average intelligence and imperfect recollection, not an amnesiac. If features of dissimilarity are numerous, with little or no chance of being confused, Court cannot, piggybacking on Slazenger & Sons v. Feltham & Co., (1889) 6 RPC 531, return a finding of confusion or deception. Even if one were, following Munday v. Carey, (1905) 22 RPC 273, to concentrate on similar rather than dissimilar, it is prima facie difficult to hold, features of ‘GLUCON-D’ pack and ‘GLUCO-D ++’ pack would confuse.   

The products in question are powders combining glucose and Vitamin C or Vitamin D, to be mixed with water and consumed. Plaintiff possesses registrations, in its favour, of the word marks ‘GLUCON-C’ and ‘GLUCON-D’. Defendants’ marks ‘PROLYTE GLUCO-C ++’ and ‘PROLYTE GLUCO-D ++’ infringe Plaintiff’s registered marks, especially as they are used for identical products.

– Hon’ble Justice C. Hari Shankar or Hon’ble High Court of Delhi, Zydus Wellness Products Ltd. v. Cipla Healthcare Ltd., [CS(COMM) 115/2023] decided on 03.07.2023.