Recently, the Division Bench of the Delhi High Court upheld the interim injunction granted in favor of Himalaya Wellness Company (“Himalaya”), restraining Wipro Enterprises Private Limited (“Wipro”) from passing off its female hygiene and menstrual health products under the EVECARE mark.
The single judge had observed that since Himalaya has been using the EVECARE mark for several decades, it has acquired significant goodwill and reputation. Moreover, since an identical mark will be used for ‘hush products’ pertaining to menstrual and reproductive health of women, buyers may exercise a lower level of scrutiny, thus, increasing the likelihood of confusion. A summary of the single judge’s decision can be found here.
During the appeal, Wipro argued that since it was selling a cleansing cosmetic wash, it was distinct from Himalaya’s tablets and syrups sold under EVERCARE mark. Wipro further argued, that prior to adoption of the EVECARE mark, it had conducted searches for similar marks in Class 3, however, it did not come across Himalaya’s registration for the EVECARE mark as it is registered in Class 5.
The court agreed with the Single Judge’s observations that the rival goods are allied and cognate, since both fall into the category of ‘hush products’ as they pertain to female reproductive hygiene. Further, the court reiterated that classification of goods and services is not a criterion while deciding the question of similarity of goods and services. It further observed that during the trial, Wipro would be able to establish whether it has adopted the EVECARE mark in good faith, or to take advantage of Himalaya’s goodwill in the EVECARE mark. However, at a prima facie stage, Wipro being a junior user of an identical mark, could not provide any justifiable explanation. Therefore, the court held that in order to prevent confusion amongst the public, it should not interfere with the the single judge’s order restraining Wipro from passing off its goods as those of Himalaya’s.
Wipro Enterprises Pvt. Ltd. v. Himalaya Wellness Company and Ors., FAO(OS)(COMM) 145/2023, judgment dated October 1, 2024 Click here to read the judgment copy
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