The Bombay High Court has reaffirmed that in the pharmaceutical sector, even minor phonetic similarities between trademarks can constitute deceptive similarity when public health is at stake. Setting aside a Single Judge’s order that vacated an interim injunction, the Court held that the marks 'RACIRAFT' and 'ESIRAFT' are deceptively similar under the heightened standard mandated by Cadila Health Care Ltd. v. Cadila Pharmaceuticals Ltd.
Background & Facts
The Dispute
Sun Pharmaceutical Industries Ltd. (Appellant/Plaintiff), India’s largest pharmaceutical company by prescription share, claims exclusive rights to the trademark 'RACIRAFT', a coined word registered in Class 5 for an oral suspension used to treat heartburn and indigestion. The mark, adopted in January 2022 and registered on 17.01.2022, is derived from 'RACI' (a misspelling of 'RACY', suggesting vitality) and 'RAFT' (referring to the foam-like gel formed by Sodium Alginate in the stomach). The Appellant began commercial use of the mark in June 2022.
In February 2025, the Appellant discovered that Meghmani Lifesciences Ltd. (Respondent No.1) was marketing a similar pharmaceutical product under the mark 'ESIRAFT', which also contains Sodium Alginate, Sodium Bicarbonate, and Calcium Carbonate. The Appellant alleged that 'ESIRAFT' is visually, phonetically, and structurally deceptively similar to 'RACIRAFT', and that the Respondent’s adoption of the mark was dishonest, given its prior use and registration.
Key Facts
- The Appellant’s trademark 'RACIRAFT' was registered on 17.01.2022 under Class 5 on a 'proposed to be used' basis.
- The Appellant commenced commercial use of 'RACIRAFT' in June 2022.
- The Respondent adopted 'ESIRAFT' in July 2024 and filed a trademark application on 21.03.2024 (still pending).
- Both products are oral suspensions for treating gastroesophageal reflux and indigestion, containing identical active ingredients.
- The Respondent previously marketed a product called 'EASYRAFT' but switched to 'ESIRAFT' after the Appellant’s mark gained prominence.
- The term 'RAFT' is acknowledged by both parties as a generic descriptor for the foam-forming property of Sodium Alginate.
- The Appellant’s packaging uses 'RACI' in one color and 'RAFT' in another; the Respondent uses 'ESI' and 'RAFT' in contrasting colors.
Procedural History
- 07.04.2025: Single Judge of Bombay High Court granted ad-interim injunction restraining use of 'ESIRAFT', finding prima facie deceptive similarity.
- 23.12.2025: Single Judge vacated the interim injunction, holding no deceptive similarity, as 'RAFT' is generic and 'RACI'/'ESI' are distinct.
- 28.03.2026: Appellant filed Commercial Appeal (L) No. 42382 of 2025 before the Division Bench.
- 08.04.2026: Division Bench heard arguments and delivered judgment.
The Parties' Positions
Appellant (Sun Pharma): Argued that 'RACIRAFT' is a coined, inherently distinctive mark with established goodwill. The phonetic similarity between 'RACIRAFT' and 'ESIRAFT' - especially when mispronounced or heard hurriedly - is sufficient to cause confusion among consumers, pharmacists, and even physicians. The use of 'RAFT' as a shared generic element does not negate overall deceptive similarity under Cadila Health Care. The Single Judge erred by dissecting the mark syllable-by-syllable.
Respondent (Meghmani): Contended that 'RAFT' is a generic term in pharmaceutical nomenclature, and no monopoly can be claimed over it. The prefixes 'RACI' and 'ESI' are visually and phonetically distinct. The Single Judge correctly applied the principle from F. Hoffmann-La Roche v. Geoffrey Manners that greater weight must be given to the distinctive portion of the mark. The Respondent’s use is bonafide and in line with industry practice.
Relief Sought
The Appellant sought: (1) setting aside of the order dated 23.12.2025 vacating the interim injunction; (2) restoration of the ad-interim injunction dated 07.04.2025; (3) direction to restrain the Respondent from using 'ESIRAFT' or any deceptively similar mark in relation to pharmaceutical products containing Sodium Alginate.
The Legal Issue
Whether the phonetic similarity between the pharmaceutical trademarks 'RACIRAFT' and 'ESIRAFT', despite the shared generic suffix 'RAFT', constitutes deceptive similarity under the Cadila Health Care test, such that an interim injunction ought to have been granted?
Arguments Presented
For the Appellant
The Appellant relied on Cadila Health Care Ltd. v. Cadila Pharmaceuticals Ltd. (2001) 5 SCC 73, which mandates a stricter standard for pharmaceutical trademarks due to the risk of life-threatening confusion. Counsel emphasized that the test is not microscopic comparison but holistic assessment from the perspective of the average consumer with imperfect recollection. The phonetic resemblance between 'RACIRAFT' and 'ESIRAFT' is striking: both are three-syllable words ending in 'RAFT'; the initial syllables 'RACI' and 'ESI' differ only in the first consonant ('R' vs 'E'), which is easily misheard or mispronounced in India’s multilingual context. The Court in Dr. Reddy’s Laboratories v. Sun Pharma (2023) and Boots Co. v. Registrar of Trade Marks (2002) had held that minor vowel/consonant shifts ('o' vs 'u', 'k' vs 'c') can cause confusion when spoken quickly. The Single Judge erred by isolating 'RAFT' and ignoring the totality of the mark.
For the Respondent
The Respondent relied on F. Hoffmann-La Roche v. Geoffrey Manners (1969) 2 SCC 716, where the suffix 'Vit' was held non-distinctive, and the distinctive prefix determined similarity. Counsel argued that 'RAFT' is a common, generic term in pharmaceuticals, used in over 100 registered marks. The Appellant itself admitted in its plaint that it does not claim exclusivity over 'RAFT'. The prefixes 'RACI' and 'ESI' are phonetically distinct: 'RACI' is pronounced /ˈræsi/ and 'ESI' as /ˈɛsi/, with no reasonable likelihood of confusion even with imperfect pronunciation. The Single Judge correctly applied the principle that generic elements must be discounted in overall assessment. The Appellant’s appeal was an attempt to re-litigate facts, not review legal error.
The Court's Analysis
The Division Bench, per Justice Bharati Dangre, undertook a rigorous analysis of the Cadila Health Care framework and its application to pharmaceutical trademarks. The Court rejected the Single Judge’s approach of dissecting the marks into 'RACI' and 'RAFT' and 'ESI' and 'RAFT', holding that such syllable-by-syllable comparison is impermissible under settled law.
"The true test is, whether the totality of the proposed trademark is such that it is likely to cause deception or confusion or mistake in the minds of persons accustomed to the existing mark."
The Court emphasized that in the pharmaceutical context, the standard is not probability of confusion but possibility of confusion. The Court noted that in India, with its linguistic diversity, illiteracy, and reliance on verbal prescriptions, pharmacists and patients often rely on auditory cues. A hurried utterance of 'RACIRAFT' may easily be misheard as 'ESIRAFT', particularly given the shared 'RAFT' ending and the minimal phonetic distance between 'RACI' and 'ESI'.
The Court distinguished F. Hoffmann-La Roche, noting that in that case, the common suffix 'Vit' was universally recognized as denoting vitamin preparations. Here, 'RAFT' is not a universally understood term among consumers; it is a technical descriptor known only to specialists. The average purchaser, whether a patient or pharmacist, is unlikely to discern the distinction between 'RACI' and 'ESI' when the rest of the mark is identical.
The Court also relied on Dr. Reddy’s Laboratories Ltd. v. Smart Laboratories Pvt. Ltd. (2023), where the Delhi High Court found 'AZIWOK' and 'AZIWAKE' deceptively similar despite a single vowel difference ('o' vs 'ay'), because the overall phonetic impression was identical. Similarly, here, the difference between 'RACI' and 'ESI' is minimal: both are three-letter prefixes, differing only in the first consonant and vowel. The Court held:
"The minuscule difference between the two words is too slight to detract from the overall phonetic similarity between them. To the ear of the consumer of average intelligence and imperfect recollection, it is clear that the words 'RACIRAFT' and 'ESIRAFT' are phonetically deceptively similar."
The Court further rejected the Respondent’s reliance on packaging differences, holding that trademark comparison must focus on the mark itself, not its presentation. The fact that the Respondent had previously used 'EASYRAFT' and then switched to 'ESIRAFT' after the Appellant’s mark gained recognition further indicated an intent to capitalize on the established goodwill.
The Court concluded that the Single Judge’s failure to apply the Cadila Health Care test - particularly the heightened standard for pharmaceuticals - constituted a legal error warranting interference. The possibility of a patient receiving the wrong medicine due to phonetic confusion was deemed unacceptable.
The Verdict
The Appellant succeeded. The Division Bench set aside the order dated 23.12.2025 vacating the interim injunction. The ad-interim injunction granted on 07.04.2025 is restored. The Respondent is restrained from using the mark 'ESIRAFT' or any deceptively similar variation in relation to pharmaceutical products containing Sodium Alginate, Sodium Bicarbonate, and Calcium Carbonate. The restraint shall remain in force until final disposal of the suit. All pending interim applications are disposed of.
What This Means For Similar Cases
Phonetic Similarity Trumps Generic Elements in Pharma Trademarks
- Practitioners must argue that even if a suffix is generic (e.g., 'RAFT', 'VIT', 'MAB'), the overall phonetic impression of the full mark governs the assessment under Cadila Health Care.
- A minor phonetic shift (e.g., 'RACI' to 'ESI', 'AZIWOK' to 'AZIWAKE') is insufficient to avoid confusion if the remainder of the mark is identical and the product is medicinal.
- Evidence of consumer mispronunciation, regional language usage, and pharmacist reliance on verbal prescriptions must be adduced to support the likelihood of confusion.
The 'Totality of the Mark' Doctrine Is Non-Negotiable
- Courts must compare trademarks as a whole, not by isolating components. Syllable-by-syllable dissection is legally impermissible.
- Packaging, color schemes, or font styles cannot override phonetic or visual similarity in the mark itself.
- The burden shifts to the defendant to prove that the distinctive portion of the mark is sufficiently different to eliminate any possibility of confusion.
Heightened Scrutiny Applies Even to Non-Life-Threatening Drugs
- The Cadila standard applies to all pharmaceutical products, regardless of whether the condition treated is life-threatening. Even for indigestion or reflux, confusion can lead to adverse effects or treatment failure.
- A manufacturer cannot justify a similar mark on the ground that the drug treats a 'minor' ailment. Public interest demands uniform protection.
- Courts must presume that consumers in India - including the elderly, illiterate, or non-English speakers - are vulnerable to phonetic deception.
