Background

The case revolves around the use of the trademark “EVECARE”. Himalaya Wellness Company (Himalaya) claims to be using the mark since 1998 for their ayurvedic proprietary medicine targeted towards women for menstrual disorder. Wipro Enterprises Private Limited (Wipro) registered an identical mark in 2021 for cosmetic intimate wash. Himalya brought an action against WIPRO alleging trademark infringement and passing off.

Interim Injunction: The Single Judge granted an interim injunction in favour of Himalaya, restraining Wipro from using the mark “EVECARE” for their products. The Judge found likelihood of confusion between the products of both parties. Wipro appealed against the order to the Division Bench (two-judge Bench).

The primary argument of Wipro was that their product is a cosmetic intimate wash registered in class 3 whereas Himalaya’s product was an ayurvedic medicine registered in class 5. Wipro also contended that the trade dress, packaging, and get-up of the two marks were entirely different.

The Division Bench analysed Wipro’s arguments and rejected their contentions observing the following:

1. Nature and Use of Products: The court noted that both Wipro’s and Himalaya’s products pertain to female reproductive hygiene and health. Wipro’s product is a cosmetic intimate wash, while Himalaya’s product is an ayurvedic medicine used as a uterine tonic. Despite the differences in their specific uses, both products are related to maintaining a healthy female reproductive system.
2. Target Consumers: Both products are targeted at the same set of consumers, i.e., women. This similarity in the target audience increases the likelihood of confusion between the two products.
3. Functionality: The court found that the function of both products is similar. Himalaya’s’ uterine tonic aims to maintain a healthy vagina by increasing the level of estrogen, which helps maintain the optimal pH level. Similarly, Wipro’s vaginal wash is designed to maintain balanced pH levels and ensure hygiene.
4. Complementary Nature: The court observed that both products can be used simultaneously to achieve better results, making them complementary to each other.
5. Trade Channels: Both products are sold through similar trade channels, including chemists and online pharmacies. This overlap in distribution channels further contributes to the likelihood of confusion.
6. Online Presence: The court noted that when consumers search for “EVECARE” on e-commerce platforms, both products appear under the common category of ‘Women Care’. This online presence under a shared category increases the potential for confusion.
7. Pricing: The court also considered the similarity in the prices of the two products, which could lead consumers to believe they are related or come from the same source.

The Court therefore found that a case of passing off was made out, as there was a likelihood of confusion between the products of Wipro and Himalaya in the minds of prospective customers. However, the Court held that an action for infringement was not made out since both parties were registered proprietors of their respective marks.