Delhi High Court restrains Wipro from using 'Evecare' mark after Himalaya files trademark infringement suit

The Delhi High on Wednesday restrained Wipro Enterprises from manufacturing, selling or advertising their female intimate wash or any other product under the mark ‘Evecare’ after Himalaya filed a suit alleging trademark infringement [Himalaya Welness Company & Ors v Wipro Enterprises Private Limited]..Justice Amit Bansal passed the interim order after noting that Himalaya has been selling its uterine tonic under the marks ‘Evecare’ and ‘Evecare Forte’ for nearly 24 years while Wipro launched its product only 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 the Himalaya but also cause confusion and deception in the market.“In the present case, an added factor for likelihood of confusion is the inherent nature of the goods. As discussed above, the products of the plaintiffs (Himalaya) and the defendant (Wipro) pertain to menstrual and reproductive health of women and would therefore, fall in the category of ‘hush products’. A prospective buyer of these kind 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,” the Court stressed..Himalaya had approached the High Court stating that their product is meant for irregular menstrual cycle, dysmenorrhea and to provide long term safety.They contended that the mark ‘Evecare’ was obtained by them in 1997 and has been in continuous use since 1998. However, in November 2022, they became aware of Wipro having obtained registration of the same mark.Though a cease-and-desist order was served upon Wipro, they refused to comply with the demands of the plaintiff.It was Wipro’s case that in November 2020, they 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.Wipro further said that their and Himalaya’s trademarks are registered under different classes. While Himalayas’ product falls under the class dealing with medicinal and pharmaceutical preparations, Wipro’s falls under the cosmetic products..After considering the case, Justice Bansal held that Wipro failed to provide a plausible explanation for adopting the identical trademark and prima facie, the adoption of the registered trademark of the plaintiffs by the defendant was not bona fide and amounted to misrepresentation.The Court further held that the two products were similar and allied/cognate and targeting the same set of consumers - women.“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 oestrogen causing growth of commensal bacteria, which in turn results in lowering or maintaining of 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,” the Court said. .The Court also recorded that when a prospective consumer would search for ‘EVECARE’ on various third-party e-commerce platforms, such as ‘Amazon’, ‘Netmeds’ and ‘TATA 1mg’, both the products of the plaintiffs and the defendant would show up, which is likely to cause confusion.“The words ‘Eve’ and ‘Care’ by themselves are dictionary words and may be considered to be descriptive. However, the plaintiffs have cited various dictionaries to highlight that ‘EVECARE’ is not a dictionary word and hence, cannot be considered to be a descriptive word. At the highest, ‘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 ‘EVECARE’,” the judge noted. .Justice Bansal rejected the argument that because Himalaya uses its house-mark, ‘Himalaya’ along with trademark ‘EVECARE’, it would eliminate confusion.In today’s times, when most products are purchased online, the search on e-commerce platforms is usually done through the trademark and therefore, in such cases, the house mark would not be of much relevance, the Court stressed.The Court concluded that a prima facie case of passing off was made out in favour of Himalaya, the balance of convenience lay in their favour and irreparable harm would be caused not only to the plaintiff but the public as well if an injunction order is not passed.“Accordingly, 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 ‘EVECARE’ mark till the final adjudication of the suit.”.Advocates Pravin Anand, Prachi Agarwal, Mishthi Dubey and Aditi Srivastava appeared for Himalaya.Wipro was represented through Senior Advocate Akhil Sibal as well as advocates Ankur Sangal, Ankit Arvind, Asavari Jain, Kiratraj Sadan and Bahuli Sharma..[Read Order]