Delhi High Court restrains Wipro from using ‘Evecare’ mark in Himalaya trademark infringement suit

Justice Bansal further said that Wipro’s reply to Himalaya’s application was “conspicuously silent” on whether they had knowledge about Himalaya’s products being sold under “the identical mark”.

“It is intriguing for me as to why a reputed company such as the defendant company would launch its product, also pertaining to female reproductive hygiene, almost 22 years later, using the identical trademark as that of the plaintiffs. A simple due diligence exercise conducted on behalf of the defendant would have informed the defendant about the existence of the product of the plaintiffs with an identical trademark. A Google search or a Trade Marks Registry search across various classes would have brought to light the registered mark of the plaintiffs,” Justice Bansal remarked.

The court opined that Wipro had failed to provide a “plausible explanation for adopting the identical trademark” and took the “prima facie view” that the adoption of Himalaya’s registered trademark by Wipro “was not bona fide and amounts to misrepresentation”.

The bench further ruled that Himalaya’s uterine tonic and Wipro’s vaginal wash were similar or “allied/cognate goods” targeting the same set of consumers, i.e., women, and had similar functions.

“Therefore, in my prima facie view, the use by the defendant of the identical mark would not only cause injury to the goodwill and reputation of the plaintiffs but is also likely to cause confusion and deception in the market,” the high court said.

The court also noted that the products sold by both Wipro and Himalaya pertain to menstrual and reproductive health of women and would therefore, fall in the category of “hush products”. It said that a prospective buyer of these kinds of products is unlikely to ask too many questions about the product before purchasing the same. “The topic of menstrual hygiene/health is, unfortunately, still not a subject matter of open and free discussion,” the high court remarked.

The high court also observed that when a prospective consumer would search for ‘EVECARE’ on various third-party e-commerce platforms like ‘Amazon’, ‘Netmeds’ and ‘TATA 1mg’, both the products of Himalaya and Wipro would show up, “which is likely to cause confusion”. “In today’s times, when most products are purchased online, the search on e-commerce platforms is usually done through the trademark and therefore, in such cases, the house mark would not be of much relevance,” the high court said.

It thereafter restrained Wipro, its directors, partners, officers, servants and agents, distributors, wholesalers, dealers, retailers etc, from manufacturing, selling any products and services, “including but not limited to their female hygiene and menstrual health product” under ‘EVECARE’ mark or any other mark which is “deceptively similar” Himalaya’s registered ‘EVECARE’ mark till the lawsuit is finally decided.

The court also said that the observations in the interim order would have no bearing on the final outcome of the suit.