The trade mark “VISCOF DP” is held deceptively similar to “VISCO”

The Indian Intellectual Property Appellate Board (IPAB) in their order dated June 25, 2012 held that the mark VISCOF-DP is similar to the prior mark VISCO and accordingly dismissed the appeal.

In this case, the appellant (applicant) was M/s. Tauras Laboratories Pvt. Ltd, Ahmedabad, who appealed against the order of Deputy Registrar of Trade Marks allowing the opposition and refusing an application for the mark VISCOF-DP in Class 5. The respondent (opponent), M/s. Aristo Pharmaceuticals Ltd., Mumbai was the registered proprietor of the trade mark “VISCO” and claimed use of such mark since the year 1987. 

In their judgment, the IPAB observed that the goods in respect of the marks, VISCO and VISCOF DP being medicinal products, more care has to be taken to decide the case. The IPAB further observed that the appellant’s goods are for treatment of cough whereas the respondent’s goods are for treatment of gastric acidity. This means that the ailments to cure the disease for goods of the appellant and respondent are different.  If one is taken for the other it would definitely cause bad effects upon the user (patient). The IPAB also observes that it has been held by various courts that “if by wrong pronunciation one consumes a medicine for the other then the injury is serious which cannot be compensated in terms of money”. Moreover, in an application for registration the onus is on the applicant to prove that the mark deserves to be registered. In the present case, the appellant has failed to prove the same and therefore, the registration of the trade mark VISCOF DP has to be rejected under Section 11 of the Act (Indian Trade Marks Act, 1999). Accordingly, the Board (IPAB) dismissed the appeal.