Bombay High Court Grants Injunction in Favor of Plaintiff in Trademark Infringement Suit Over STIMULIV vs STIMULET. Marks Held Deceptively Similar Despite Differences in Pharmaceutical Formulation and Therapeutic Use.

A) Trade Marks - Infringement - Deceptive Similarity - Section 29(2)(b) of the Trade Marks Act, 1999 - The court compared the marks STIMULIV and STIMULET and found them to be structurally, phonetically, and visually similar, with the common prefix 'STIMU' being the dominant feature. The court held that the addition of the suffix 'LET' does not sufficiently distinguish the marks, and there is a likelihood of confusion among consumers, especially in the pharmaceutical context. (Paras 6-14)

B) Trade Marks - Passing Off - Deceptive Similarity - Common Law - The court applied the test of likelihood of confusion and held that the similarity between the marks STIMULIV and STIMULET is likely to cause confusion or deception among the public, leading to passing off. The court rejected the argument that the products are different (Ayurvedic vs allopathic) as irrelevant for the purpose of passing off. (Paras 15-20)

C) Civil Procedure - Rejection of Plaint - Order VII Rule 11 CPC - The court dismissed the Defendant's application for rejection of the plaint, holding that the plaint discloses a cause of action and the issues raised are triable. The court noted that the application was not maintainable as it sought rejection on merits which is not permissible under Order VII Rule 11. (Paras 21-25)

D) Trade Marks - Honest Concurrent Use - Section 12 of the Trade Marks Act, 1999 - The court rejected the Defendant's defense of honest concurrent use, finding that the Defendant's adoption of the mark STIMULET was not honest given the prior use and registration of the Plaintiff's mark STIMULIV. The court held that the Defendant failed to provide sufficient evidence of honest concurrent use. (Paras 26-30)

E) Trade Marks - Delay and Acquiescence - The court rejected the Defendant's argument of delay and acquiescence, holding that the Plaintiff acted promptly in filing the suit and that mere delay without prejudice does not bar an injunction. The court found no evidence of acquiescence by the Plaintiff. (Paras 31-35)

Whether the mark STIMULET of the Defendant is deceptively similar to the Plaintiff's mark STIMULIV, and whether the Plaintiff is entitled to an interim injunction restraining the Defendant from using the mark STIMULET.

• Trademark infringement
• passing off
• deceptive similarity
• pharmaceutical trademarks
• Ayurvedic vs allopathic
• likelihood of confusion
• phonetic similarity
• structural similarity
• prefix dominance
• suffix variation
• honest concurrent use
• delay and acquiescence
• rejection of plaint under Order VII Rule 11 CPC