In Cutis Biotech v. Serum Institute of India Pvt. Ltd., Commercial Suit No.1/2021 (CNR No. : MHPU010001072021 ), a commercial court of Pune refused to pass interim injunction (II) to restrain the Serum Institute of India(SII) from using the trademark “COVISHIELD” for its vaccine for the Coronavirus induced pandemic.
An application was filed under Order XXXIX, Rule 1&2 of CPC by Cutis Biotech for seeking temporary injunction to restrain Serum temporarily from committing act of passing off of the trademark, namely Covishield, so also to restrain it temporarily from using the trademark Covishield and also to direct defendant to maintain and submit the accounts of profit earned through using the trademark Covishield.
In its reply, the Serum Institute said both companies operate in different product categories and there is no scope for confusion over the trademark, according to the lawyers representing the world’s largest maker of vaccines.The Court held that the Cutis Biotech could not prima facie prove the triple tests of the passing off a trade mark i.e. goodwill of the plaintiff, misrepresentation by the defendant and damages to the plaintiff.
It also held that if the SII is restrained from using the trade name “COVISHIELD” it would lead to great hardship for people to identify the much awaited COVID-19 vaccine.
The Court further held that the plaintiff could not point out that, due to the use of the trade mark ‘Covishield’ by defendant, it is going to suffer “irreparable loss”.