PHENSEDYL Trademark Protected: Court blocks 'PHENSERYL' cough syrup, rules confusion in medicines can be life-threatening

The Plaintiff, part of the Sanofi Group, adopted the trademark PHENSEDYL in 1954 for pharmaceutical products, introducing it to the Indian market in 1995.

The Plaintiff holds multiple valid registrations for the word mark and its distinctive blue-and-pink trade dress.

In 2024, the Plaintiff discovered the Defendant using the mark PHENSERYL with a nearly identical trade dress for similar cough syrups.

Although the Defendant initially filed a written statement claiming its own registrations, those registrations were subsequently cancelled by the High Court in November 2024 following rectification petitions filed by the Plaintiff.

The Defendant later ceased appearing and was proceeded against ex parte on July 20, 2026, and the Plaintiff subsequently moved an application for summary judgment.

1. Whether the Defendant’s use of the mark PHENSERYL and its associated packaging constitutes infringement and passing off of the Plaintiff's PHENSEDYL marks.

2. Whether the Plaintiff is entitled to a summary judgment under Order XIII-A of the Commercial Courts Act, 2015, without the need for a full trial.

The Court applied Sections 134 and 135 of the Trade Marks Act, 1999 regarding infringement and passing off, and Section 51 of the Copyright Act, 1957 regarding the artistic work of the trade dress.

The Court relied on the Supreme Court’s precedent in Cadila Health Care Ltd. v. Cadila Pharmaceuticals Ltd., which mandates a higher standard of protection and a lower threshold for proving confusion in medicinal products to prevent life-threatening errors.

The Court applied Order XIII-A of the Commercial Courts Act, 2015, alongside the principles in Su-Kam Power Systems Ltd. v. Kunwer Sachdev, which allow for summary judgment when a defendant has no real prospect of successfully defending the claim.

The Court found that the Plaintiff established prior use and valid registrations dating back decades.

A comparative analysis revealed that the rival marks were phonetically and visually similar, and the Defendant’s trade dress—utilizing a similar dark blue background and white font—was designed to imitate the Plaintiff’s product.

Since the Defendant's own registrations had already been cancelled by a coordinate bench and the Defendant failed to present any other viable defense, the Court determined there was no "real prospect" of the Defendant succeeding.

The Court emphasized that because the products were identical cough syrups sold through the same channels, the likelihood of consumer confusion was high, necessitating injunctive relief to protect public interest.

The suit was decreed in favor of the Plaintiff, granting a permanent injunction against the Defendant from using the mark PHENSERYL or any mark deceptively similar to PHENSEDYL.

The Defendant was restrained from infringing the Plaintiff’s trademarks and copyright and from passing off its goods as those of the Plaintiff.

The Registry was directed to draw up the decree sheet accordingly.