Passing off in medicines: common descriptive prefixes cannot be monopolised, and confusion must be shown on the overall facts.

In a passing off dispute over medicinal products, the court applied the stricter confusion test used for drugs and examined the marks as a whole, the class of purchasers, and the overall presentation of the goods. It held that no trader can monopolise a common descriptive or generic prefix that is publici juris, and found that "LIPI" was derived from "Lipid" and used descriptively by several manufacturers. Because the parties' products were prescription medicines launched around the same time and their packaging, composition, dosage form, price, and presentation were materially different, a real likelihood of confusion was not shown and the balance of convenience favoured the defendant. Interim injunction was refused.

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Issues: Whether the defendant's use of the mark "LIPICOR" in relation to a medicinal product was deceptively similar to the plaintiffs' mark "LIPICARD" so as to justify interim injunctive relief in a passing off action.

Analysis: The relevant test in a passing off dispute involving medicinal products is whether the competing marks, viewed as a whole and in the context of the goods, are likely to cause confusion among the relevant class of purchasers. In cases concerning drugs, the standard is applied with greater strictness because confusion may have serious health consequences. At the same time, no trader can claim monopoly over a word or prefix that has become common to the trade or publici juris. The material on record showed that the prefix "LIPI" was derived from "Lipid", was descriptive of the therapeutic use, and had been used by several other manufacturers for similar products for a number of years. The parties' products were launched around the same time, both were prescription medicines, and the packaging, composition, dosage form, price, and presentation were materially different. On these facts, the likelihood of confusion or deception was not established, and the balance of convenience favoured the defendant.

Conclusion: The plaintiffs were not entitled to interim injunction. The defendant's application for vacating the ex parte order was allowed and the plaintiffs' application was dismissed.

Ratio Decidendi: In a passing off action concerning medicinal products, a common descriptive or generic prefix that is publici juris cannot be monopolised, and interim injunction will not issue unless the plaintiff shows a real likelihood of confusion on the overall facts, including the nature of the marks, the goods, the purchaser class, and the balance of convenience.

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