Delhi High Court restricts Wipro from using ‘Evecare' mark after Himalaya’s trademark infringement suit

Delhi High Court restricts Wipro from using ‘Evecare' mark after Himalaya’s trademark infringement suit

States that identical products would cause confusion and deception in the market

The Delhi High Court has restrained Wipro Enterprises from manufacturing, selling or advertising their female intimate wash or any other product under the mark ‘Evecare.’ The move follows Himalaya Wellness Company filing a suit alleging trademark infringement.

The Bench of Justice Amit Bansal passed the interim order on noting that Himalaya was selling its uterine tonic under the marks ‘Evecare’ and ‘Evecare Forte’ for nearly 24 years, whereas Wipro launched its product in 2021.

The Court said that prima facie, Wipro’s use of identical mark would not only cause injury to the goodwill and reputation of Himalaya, but also cause confusion and deception in the market.

While elaborating, the Court stressed, “An added factor for the likelihood of confusion is the inherent nature of the goods. The products of the plaintiffs (Himalaya) and the defendant (Wipro) pertain to the menstrual and reproductive health of women and would, therefore, fall in the category of ‘hush products’. A prospective buyer of these kinds of products is unlikely to ask too many questions about the product before purchasing the same. The topic of menstrual hygiene/health is, unfortunately, still not a subject matter of open and free discussion.”

Himalaya had approached the High Court stating that its product was meant for irregular menstrual cycles and dysmenorrhea, and to provide long-term safety.

It contended that the mark ‘Evecare’ was obtained by it in 1997 and has been in continuous use since 1998. However, in November 2022, Himalaya became aware of Wipro having obtained registration of the same mark.

Though a cease-and-desist order was served upon Wipro, it refused to comply with the demands.

Wipro had stated that in November 2020, it ventured into the female hygiene segment and conceived the idea of launching an intimate hygiene wash for women. Since the product pertains to feminine hygiene, they adopted the mark ‘Evecare’ to give a protective and caring tone to the brand.

The company held that the trademarks of Himalaya and Wipro were registered under different categories. While Himalayas’ product was listed under ‘dealing with medicinal and pharmaceutical preparations,’ Wipro’s came under ‘cosmetic products.’

The Bench noted that Wipro failed to provide a plausible explanation for adopting the identical trademark and prima facie, the adoption was not bona fide and amounted to misrepresentation.

The Court stated, “The function of both the products is similar i.e., to maintain a healthy female reproductive system with uterine and vaginal care being the focus. The main purpose of the uterine tonic of the plaintiffs is to increase the level of estrogen causing the growth of commensal bacteria, which in turn results in lowering or maintaining pH levels between 3.5 to 4.5. This is the optimum pH level required for a healthy vagina. The function of the defendant’s vaginal wash is also to maintain balanced pH, besides maintaining sanitation and hygiene.”

Justice Bansal recorded that when a prospective consumer would search for ‘Evecare’ on various third-party e-commerce platforms, such as Amazon, Netmeds, and Tata 1mg, the products of both - the plaintiff and the defendant, would show up. This was likely to create confusion in the minds of the buyers.

The Bench held, “The words ‘Eve’ and ‘Care’ by themselves are dictionary words and may be considered to be descriptive. However, the plaintiff has cited various dictionaries to highlight that ‘Evecare’ is not a dictionary word and hence, cannot be considered to be a descriptive word. ‘Evecare’ is a suggestive term and hence, would be entitled to a high level of protection. This view is fortified by the fact that the defendant itself has obtained registration of the mark.”

The Judge rejected the argument that because Himalaya used its house mark, ‘Himalaya’ along with trademark ‘Evecare’, it would eliminate confusion.

The Court said that in present times, most products were purchased online and the search on e-commerce platforms was usually done through the trademark. Therefore, the house mark would not be of much relevance. A prima facie case of passing off was made in favour of Himalaya and the balance of convenience lay in its favour, as irreparable harm would be caused not only to the plaintiff, but also the public if an injunction order was not passed.

The Bench ruled, “The defendant, its directors, Partners, officers, servants and agents, distributors, wholesalers, dealers, retailers or any other person acting for and on their behalf are restrained from manufacturing, selling, offering for sale, advertising, directly or indirectly dealing in any manner with regard to any products and services, including but not limited to their female hygiene and menstrual health product under the mark ‘Evecare’ and/or any other mark, which is deceptively similar to the plaintiffs’ registered mark till the final adjudication of the suit.”

Advocates Pravin Anand, Prachi Agarwal, Mishthi Dubey, and Aditi Srivastava appeared for Himalaya.

Wipro was represented by senior advocate Akhil Sibal and advocates Ankur Sangal, Ankit Arvind, Asavari Jain, Kiratraj Sadan, and Bahuli Sharma.