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Sun Pharmaceutical Industries Ltd vs Protrition Products Llp & Ors.
CITATION2023 SCC Online Del 7467
DATE OF JUDGMENT24th November, 2023
COURTDelhi High Court
PLAINTIFFSun Pharmaceutical Industries Ltd
DEFENDANTSProtrition Products Llp & Ors.
BENCHC. Hari Shankar


The case revolves around a contentious issue of trademark infringement, where the plaintiff, holding registered trademarks for anti-fungal pharmaceutical preparations, accuses the defendants of attempting to use similar marks for unrelated products. The plaintiff asserts that the defendants’ marks are deceptively similar, potentially leading to consumer confusion. Seeking to safeguard its intellectual property rights, the plaintiff requests an injunction to halt the defendants’ use of the disputed marks. After careful consideration, the court discerns a prima facie case of infringement and issues the injunction, underscoring the significance of upholding registered trademarks and averting consumer confusion in the marketplace.


  1. The plaintiff owns registered trademarks for anti-fungal pharmaceutical preparations in Class 5 under the Trade Marks Act, 1999. These marks include “ABZORB,” “ABZORBEC,” and “ABZORB SYNDET”. 
  2. The defendants have applied for marks similar to the plaintiff’s, such as “ABBZORB” and “ABBZORB NUTRITION,” but for different products falling under Classes 29 and 30, which include meat, fish, poultry, dairy, and coffee, among other goods.
  3. The plaintiff alleges that the defendants’ marks are deceptively similar to theirs and seeks an injunction to prevent their use, arguing that their use of the marks for whey protein, which falls within Class 5, is likely to cause confusion among consumers.
  4. The court notes that the defendants’ earlier application for the mark “ABBZORB” in Class 5 was abandoned after objections were raised by the Trademarks Registry regarding its similarity to the plaintiff’s mark. Despite this, the defendants proceeded to use the mark for whey protein, demonstrating a lack of bona fides.
  5. Based on the evidence presented, the court finds a prima facie case of infringement and grants an injunction restraining the defendants from using the marks “ABBZORB” and “ABBZORB NUTRITION” pending the final disposition of the case.
  6. The court emphasizes the importance of protecting registered trademarks and preventing consumer confusion in its decision, highlighting the need to uphold the integrity of trademark law.


  1. What goods do the plaintiff and defendants produce under their respective marks?
  2. How does the plaintiff allege infringement by the defendants?
  3. How does the court analyze the issue of infringement?


  1. The plaintiff asserts that they hold valid registrations for the marks ABZORB, ABZORBEC, and ABZORB SYNDET under Class 5 of the nice classification for pharmaceutical and medicinal preparations.
  2. They argue that the defendants, despite having no subsisting registration in Class 5, are using the marks ABBZORB and ABBZORB NUTRITION for whey protein, a product falling within Class 5, which infringes on the plaintiff’s registered marks.
  3. The plaintiff manufactures and sells anti-fungal pharmaceutical preparations under the marks ABZORB, ABZORBEC, and ABZORB SYNDET, which are clearly within the scope of Class 5.
  4. They argue that the defendants cannot claim protection under Section 30(2)(e) as their marks are not registered for Class 5 goods.
  5. They argue that visual differences between labels and price disparities between products are not relevant in determining infringement, as infringement is assessed based on the mark-to-mark comparison.


  1. The defendant initially argues that the plaintiff’s mark “ABZORB” is not eligible for registration as it is a variant of the common English word “absorb.” They rely on a previous court judgment to support this contention.
  2. They argue that if a consumer mistakenly uses whey protein instead of an anti-fungal preparation, it would not result in significant harm. Conversely, using an anti-fungal preparation such as whey protein could lead to adverse consequences. Hence, they contend that it is the plaintiff’s product that poses a potential risk, not theirs.
  3. They argue that the price disparity and different target consumer groups make confusion unlikely. Their whey protein, aimed at bodybuilders and athletes, is considerably more expensive than the plaintiff’s anti-fungal preparations, which are priced lower and intended for individuals with fungal infections.
  4. The defendant claims that there is no deceptive similarity between their labels or packaging and those of the plaintiff. They argue that while visual differences may be relevant in a passing-off claim, they hold little significance in an infringement case.


The High Court of Delhi’s judgement stems from a thorough analysis of the phonetic and visual similarities between the plaintiff’s mark “ABZORB” and the defendant’s marks “ABBZORB” and “ABBZORB NUTRITION.” Despite the addition of an extra letter “B,” the pronunciation remains virtually identical, making it prone to confusion among consumers. The court emphasizes that the likelihood of confusion is assessed from the perspective of an average consumer with imperfect recollection, who may easily mistake one mark for another. While the defendant argued that visual differences in labels and price differentials mitigate confusion, the court dismisses these contentions. It asserts that such differences are irrelevant in determining infringement, as they pertain to a mark-to-mark comparison. Moreover, the court relies on precedent to highlight that even visually distinct marks can be deemed deceptively similar if their textual components are phonetically alike. Ultimately, the court’s decision underscores the paramount importance of safeguarding against potential consumer confusion, thereby upholding the plaintiff’s rights to its registered mark.


The case involves a dispute over trademark infringement between the plaintiff, who owns the mark “ABZORB” for pharmaceuticals, and the defendants, who use similar marks for whey protein. Despite minor visual differences, the court found the marks phonetically identical, leading to potential confusion. Arguments about visual differences and price differentials were dismissed as irrelevant. The defendants’ use of the marks for products not covered by their registrations did not mitigate infringement. The court rejected claims that “ABZORB” lacked distinctiveness. It also noted the defendants’ mala fide intent in continuing to use the mark despite knowing of the plaintiff’s registration. Ultimately, a prima facie case of infringement was established, leading to the grant of an injunction against the defendants pending the suit’s final resolution.


In this case, the plaintiff owns trademarks for anti-fungal pharmaceuticals in Class 5. The defendants have registrations for similar marks in Classes 29 and 30 but use them for whey protein, falling under Class 5. Despite objections, the defendants persisted. The court finds infringement due to phonetic and structural similarities, dismissing arguments on consumer segments and price differences. Defendants’ actions are seen as mala fide. Pending resolution, the court grants an injunction against defendants from using marks for certain goods. The marks’ visual differences and price disparities are irrelevant in trademark infringement analysis. The defendants’ use of the mark for whey protein constitutes infringement, as their registrations do not cover this product. The court also dismisses the defendants’ argument regarding the plaintiff’s entitlement to registration. The defendants’ knowledge of the plaintiff’s mark renders their actions mala fide, warranting injunctive relief.


  1. SCC Online
  2. https://indiankanoon.org/doc/93329166/

This Article is written by Megha Chaudhary student of Lloyd law College, Greater Noida, Intern at Legal Vidhiya.

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