Phonetic similarity in pharmaceutical marks warrants a stricter injunction standard regardless of different administration modes.

The Plaintiff, a global healthcare company, has used the registered trademark ‘PHEXIN’ in India since 1985 for antibiotic tablets.

It also uses a distinctive green and white trade dress.

The Defendant manufactured and marketed pharmaceutical ointments under the marks ‘FEXIT’, ‘FEXIT-B’, and ‘FEXIT-M’ using a similar green and white trade dress.

While the Defendant agreed to discontinue the mark 'FEXIN' during proceedings, it contested an injunction against the 'FEXIT' series.

The Defendant claimed use of 'FEXIT' since 2007.

The Defendant argued that the products differed in form (tablets vs. ointments) and price.

The Plaintiff filed this application under Order XXXIX Rules 1 and 2 of the CPC seeking an interim injunction.

1. Whether the Defendant's marks ‘FEXIT’, ‘FEXIT-B’, and ‘FEXIT-M’ are deceptively similar to the Plaintiff’s registered mark ‘PHEXIN’.

2. Whether the difference in the mode of administration (tablets vs. ointment) and the status of the products as Schedule H drugs precludes the likelihood of confusion.

3. Whether the prefix 'FEXI' is common to trade, thereby disentitling the Plaintiff to exclusivity.

The court applied the "stricter approach" for deceptive similarity in pharmaceutical trademarks as established in *Cadilla Healthcare Ltd. v. Cadilla Pharmaceuticals Ltd.* and *Glenmark Pharmaceuticals Ltd. v. Sun Pharma Laboratories Ltd.*, noting that confusion in medicines can be life-threatening.

It invoked the "Initial Interest Confusion" test, where even transient confusion at the preliminary stage constitutes infringement under Section 29 of the Trade Marks Act, 1999.

Regarding the "common to trade" defense, it relied on *GlaxoSmithKline Pharmaceuticals Ltd. v. Horizon Bioceuticals Pvt. Ltd.*, distinguishing "common to register" from "common to trade".

It also applied the principle from *Midas Hygiene Industries P. Ltd. v. Sudhir Bhatia* that mere delay is not a ground to deny an injunction in cases of trademark infringement.

The Court found that 'PHEXIN' and 'FEXIT' are phonetically and visually deceptively similar, particularly noting the similarity of the first syllables and the "triple identity" of similar product categories, trade channels, and consumer bases.

The Court rejected the Defendant’s argument regarding different modes of administration, holding that for pharmaceutical goods, such differences are irrelevant as pharmacists and doctors are not immune to mistakes.

The court noted that the Defendant's adoption of a similar green/white trade dress evidenced prima facie dishonest intent to ride on the Plaintiff's goodwill.

On the "common to trade" plea, the court held that the Defendant failed to provide evidence of substantial market use of third-party marks, as mere presence on the Trademark Register is insufficient.

The Court granted an interim injunction restraining the Defendant and its associates from using the marks ‘FEXIT’, ‘FEXIT-B’, and ‘FEXIT-M’, the impugned trade dress, or any other mark deceptively similar to ‘PHEXIN’.

The balance of convenience was found in favor of the Plaintiff due to its long-standing reputation and the potential risk to public health.

Application I.A. No. 20991/2025 was disposed of accordingly.