This case addresses a trademark dispute between Wipro Enterprises and Himalaya Wellness Company concerning the use of the mark "EVECARE." The dispute centers around allegations of passing off and trademark infringement, with both parties claiming rights to the mark in different product categories. The case explores the interplay between common law rights, prior use, and the classification of goods under the Trade Marks Act, 1999.

Background:
Respondents (Himalaya Wellness):Himalaya Wellness adopted the mark "EVECARE" in 1997 and has used it continuously since 1998 for their proprietary ayurvedic medicines (e.g., uterine tonics) in Class 5. The products have gained significant goodwill and are sold under the umbrella brand "HIMALAYA."

Appellants (Wipro Enterprises): Wipro Enterprises adopted the mark "EVECARE" in Class 3 in 2020 for female hygiene products, specifically intimate washes. The mark was registered in 2021 after conducting a trademark search in their class. They began selling the product in 2021.

The Dispute: Himalaya Wellness claimed that Wipro’s use of "EVECARE" for allied products created confusion, given their prior use and goodwill. They sought an injunction to restrain Wipro from using the mark.

Brief Facts of the Case: Himalaya Wellness used the mark "EVECARE" for over 25 years, gaining recognition in the ayurvedic medicine market.Wipro registered the same mark in a different class (Class 3) for female hygiene products in 2021, citing no prior registration in that class.Himalaya issued a cease-and-desist notice in 2022, which Wipro contested, leading to the suit.The Single Judge granted an interim injunction against Wipro, restraining them from using the mark "EVECARE" for female hygiene products.

Issues Involved:

• Passing Off: Whether Wipro’s use of "EVECARE" amounts to passing off, given Himalaya’s prior use and goodwill.
• Trademark Infringement: Whether the use of identical marks for unrelated goods in different classes constitutes infringement.
• Consumer Confusion: Whether the products are similar enough to cause confusion among consumers.
• Classification of Goods: Whether the difference in trademark classes (Class 3 vs. Class 5) affects the rights of the parties.

Submissions of the Parties:

• Appellant (Wipro Enterprises):
  • Claimed their use of "EVECARE" was bona fide and unrelated to Himalaya’s products.
  • Argued that their product (intimate wash) is a cosmetic and falls under Class 3, distinct from Himalaya’s ayurvedic medicines (Class 5).
  • Highlighted differences in product nature, packaging, and target use.
  • Asserted that the mark "EVECARE" is generic, combining "EVE" (woman) and "CARE."
• Respondents (Himalaya Wellness):
  • Asserted prior and continuous use of "EVECARE" since 1998, creating goodwill in the market.
  • Claimed Wipro’s use of the mark caused consumer confusion due to the allied nature of the products, both catering to female reproductive health.
  • Highlighted that consumers might associate Wipro’s products with Himalaya due to similar branding and distribution channels.
  • Contended that the mark "EVECARE" is coined and distinctive, deserving protection.

Reasoning and Analysis by the Court:

• Passing Off: The Court emphasized that passing off is based on prior use and goodwill, which Himalaya successfully established. Relying on the "classical trinity" of passing off (goodwill, misrepresentation, damage), the Court found Wipro’s use of "EVECARE" likely to mislead consumers.
• Hush Product and Classification of Goods: The Court rejected Wipro’s argument that different trademark classes negate consumer confusion. Goods are in the category of "hush products" and thus a prospective buyer would be unlikely to ask too many questions about the product before purchasing the same. Both products, despite differing classes, target women’s reproductive health, making them allied goods.
• Likelihood of Confusion: The Court noted similarities in product purpose (female health), distribution channels (pharmacies, online platforms), and overlapping consumer bases. Highlighted that both products appear under "women’s care" categories on e-commerce platforms, increasing the likelihood of confusion.
• Hush Products: Observed that both products fall under "hush products," where consumers are less likely to ask detailed questions, further amplifying confusion.
• Distinctiveness of the Mark: Found "EVECARE" to be a coined term, with Himalaya’s long use making it distinctive and associated with their brand.

Decision:
The Court upheld the Single Judge’s interim injunction, restraining Wipro from using the mark "EVECARE" for their products. It concluded that Wipro’s use of the mark constituted passing off, given Himalaya’s prior use and goodwill. 

Conclusion:
The judgment reaffirms the principle that prior use and goodwill take precedence over subsequent registration in trademark disputes. Even when products fall under different trademark classes, their allied nature and overlapping consumer base can lead to a finding of passing off. The case underscores the importance of due diligence and the risks of adopting identical marks, even in unrelated categories.

Case Title: Wipro Enterprises Private Limited vs Himalaya Wellness Company & Ors.

Date of Order:1 October 2024
Case Number:FAO (OS) (COMM) 145/2023
Neutral Citation:2024:DHC:7544-DB
Name of Court:High Court of Delhi
Name of Judges:Justice Vibhu Bakhru and Justice Tara Vitasta Ganju

Disclaimer:
The information shared here is intended to serve the public interest by offering insights and perspectives. However, readers are advised to exercise their own discretion when interpreting and applying this information. The content herein is subjective and may contain errors in perception, interpretation, and presentation.

Written By: Advocate Ajay Amitabh Suman, IP Adjutor - Patent and Trademark Attorney
Email: [email protected], Ph no: 9990389539