Delhi High Court
Glaxosmithkline Pharmaceuticals … vs Zee Laboratories Limited on 28 February, 2026
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment delivered on: 28/02/2026
+ CS(COMM) 896/2025
GLAXOSMITHKLINE PHARMACEUTICALS
LTD. .....Plaintiff
versus
ZEE LABORATORIES LIMITED. ....Defendant
Advocates who appeared in this case
For the Plaintiff : Ms. Tanya Varma, Mr. Vardaan Anand, Ms.
Ruchika Yadav and Ms. Hansika Bajaj,
Advocates.
For the Defendant : Mr. Rohit Bohra and Mr. Siddharth
Bambha, Advocates.
CORAM:
HON'BLE MR. JUSTICE TEJAS KARIA
JUDGMENT
TEJAS KARIA, J
I.A. No. 20991/2025
1. This is an Application filed by the Plaintiff under Order XXXIX
Rules 1 and 2 of Code of Civil Procedure, 1908 (“CPC“) restraining
infringement of the Trade Mark, ‘PHEXIN’ (“Plaintiff’s Mark”), passing
off, unfair competition, dilution etc.
2. The Defendant is using the Marks, ‘FEXIN’, ‘FEXIN-F’, ‘FEXIT’,
‘FEXIT-B’ and ‘FEXIT-M’ for sale of pharmaceutical ointments.
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Signed By:NEELAM
SHARMA
Signing Date:28.02.2026
14:57:20
3. On 03.09.2025, the learned Counsel for the Defendant, on
instructions, furnished an oral statement before this Court that the Defendant
will discontinue the use of the Mark ‘FEXIN’ forthwith. The statement of
the Defendant was taken on record and the Defendant was made bound to
the statement.
4. The Defendant was, however, opposed the injunction against the use
of the Marks, ‘FEXIT’, ‘FEXIT-B’ and ‘FEXIT-M’ (“Impugned Marks”)
and, accordingly, the Parties have been heard with respect to grant of interim
injunction against the use of the Impugned Marks by the Defendant.
SUBMISSIONS ON BEHALF OF THE PLAINTIFF:
5. The learned Counsel for the Plaintiff made the following submissions:
5.1. The Plaintiff is a member of the GlaxoSmithKline (“GSK”) group of
companies, of which GSK Pharmaceuticals Limited is the parent
company. GSK is a science-led global healthcare company based in
the United Kingdom. GSK has had a presence in India dating back
over 100 years since the incorporation of the Plaintiff in 1924. The
Plaintiff’s Mark has been in use in India since 1985 and has also
received Trade Mark registration, the details of which are as under:
Trade Mark Registration Date of Class
No. Registration
PHEXIN 418731 7th March 1984 05
5.2. The Plaintiff manufactures and markets extended-release antibiotic
tablets for treatment of respiratory tract infections, urinary tract
infections, skin and soft tissue infections, otitis media and other
infections due to bacteria under the Plaintiff’s Mark (“Plaintiff’s
Product”). The Plaintiff has also adopted distinctive outer packaging,Signature Not Verified CS(COMM) 896/2025 Page 2 of 16
Signed By:NEELAM
SHARMA
Signing Date:28.02.2026
14:57:20
‘ ‘ (“Plaintiff’s Trade Dress”) for the
product under the Plaintiff’s Mark, which consists of a white and
green colour combination.
5.3. The Plaintiff has advertised and promoted the Plaintiff’s product
under the Plaintiff’s Mark in India over the years. The consolidated
advertising and promotional expenditure incurred annually by the
Plaintiff for the products under the Plaintiff’s Mark are as under:
S. No. Year Advertisement &
Promotional
Expenses (in INR)
1. 2014 1,62,57,000
2. 2015 82,95,000
3. 2016 1,25,38,000
4. 2017 1,26,76,000
5. 2018 64,06,000
6. 2019 76,50,000
7. 2020 38,51,000
8. 2021 27,84,000
9. 2022 1,38,000
10. 2023 -
11. 2024 -
12. 2025 (Year-to-Date) 1,02,000
5.4. The Defendant is a company incorporated under the Companies Act.
The Defendant is the marketer and manufacturer of pharmaceutical
ointments under the Impugned Marks (“Defendant’s Products”). The
Defendant has also adopted a Trade Dress with green and white
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Signed By:NEELAM
SHARMA
Signing Date:28.02.2026
14:57:20
packaging, ‘ ‘ (“Impugned Trade
Dress”), which is deceptively similar to the Plaintiff’s Trade Dress.
The visual comparison of the Plaintiff’s Trade Dress and the
Impugned Trade Dress is as under.
Plaintiff’s Product Defendant’s Product
5.5. The Plaintiff sent a Cease-and-Desist notice dated 22.04.2025
(“Cease and Desist Notice”) to the Defendant directing the
Defendant to cease and desist the use of the Impugned Marks and the
Impugned Trade Dress. The Defendant did not respond to the Cease
and Desist Notice and chose to ignore the same. Thereafter, the
Plaintiff also addressed a follow up letter dated 02.05.2025 to the
Defendant, which also went unaddressed by the Defendant.
Thereafter, in July 2025, the Plaintiff proceeded to conduct a market
check in the region of Delhi and came across the Defendant’s
Products.
5.6. The Supreme Court in Cadilla Healthcare Ltd. v. Cadilla
Pharmaceuticals Ltd, (2001) 5 SCC 73 and this Court in Glenmark
Pharmaceuticals Limited vs. Sun Pharma Laboratories Limited,
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Signed By:NEELAM
SHARMA
Signing Date:28.02.2026
14:57:20
(2024) 100 PTC 505, have held that while judging deceptive
similarity between competing marks used in pharmaceutical sector,
stricter approach is to be applied. The pharmacists, chemists are not
immune to mistakes and the handwriting of the doctors are mostly
illegible, thus confusion and deception is inevitable. Public interest
supports lesser degree of proof showing confusing similarity in the
case of trade mark in respect of medicinal products as against other
non-medicinal products. Confusion between medicinal products may
be life threatening, not merely inconvenient and could have dire effect
on public health.
5.7. The three ingredients of passing off stand satisfied in the facts of the
present case. The Plaintiff’s pleadings and the accompanying
documents with respect its turnover for the preceding years and
expenditure on promotion, the favourable orders passed by this Court
in favour of the Plaintiff with respect to the Plaintiff’s Mark and the
continuous and extensive use of the Plaintiff’s Mark for nearly half a
century clearly establishes that the Plaintiff has immense goodwill and
reputation in the Plaintiff’s Mark.
5.8. The use of deceptively similar mark by the Defendant for identical
goods, i.e. pharmaceutical preparations is bound to confuse the public.
The risk is even more so as the goods in question are pharmaceutical
preparations and the use of the Impugned Marks by the Defendant and
the resultant misrepresentation is likely to cause monetary damage to
the Plaintiff as well as hamper the goodwill of the Plaintiff accrued in
the Plaintiff’s Mark.
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Signed By:NEELAM
SHARMA
Signing Date:28.02.2026
14:57:20
SUBMISSIONS ON BEHALF OF THE DEFENDANT:
6. The learned Counsel for the Defendant made the following
submissions:
6.1. The Impugned Marks and the Plaintiff’s Mark are neither identical
nor are they deceptively similar. The Defendant is manufacturing and
marketing the Defendant’s Products in trade dresses other than the
Impugned Trade Dress. A comparison of the Plaintiff’s Trade Dress
and the other trade dresses of the Defendant’s Products is as under:
Plaintiff’s Product Infringing Product
6.2. The Defendant has been continuously using the Impugned Mark,
‘FEXIT’ since 2007, the Defendant has placed on record the
manufacturing licence issued by the Drug Licensing Authority in
2007, evidencing approval to manufacture and sell the product under
the Impugned Mark, ‘FEXIT’. The Defendant has also filed invoices
demonstrating sales of its product under the Impugned Mark,Signature Not Verified CS(COMM) 896/2025 Page 6 of 16
Signed By:NEELAM
SHARMA
Signing Date:28.02.2026
14:57:20
‘FEXIT’, establishing that the product has been circulating in the
market for several years.
6.3. There is no likelihood of confusion as the Plaintiff’s Mark and the
Impugned Marks have co-existed in the market for over ten years, and
the Plaintiff has failed to produce even a single instance of confusion
among consumers. The Defendant’s Products are antibiotic cream /
ointment meant for treating dermatological conditions such as
eczema. The Plaintiff’s Product is an oral antibiotic capsule used for
treating bacterial infections such as urinary tract infections and
respiratory infections. Both products are Schedule H drugs, which
cannot be dispensed without a doctor’s prescription. The nature,
purpose, intended use, and consumer base of the two products are
distinct. The Defendant’s Products are priced between ₹100-₹150,
whereas the Plaintiff’s capsule is priced around ₹250-260.
6.4. This Court in Kalindi Medicure Pvt. Ltd. v. Intas Pharmaceuticals
Ltd. & Anr., (2007) 136 DLT 200, held that even assuming the
possibility of misreading a prescription, the mode of administration of
the medicine is a crucial factor. The Court held that the marks,
‘LOPRIN’ and ‘LOPARIN’ were not deceptively similar as the modes
of intake were different. Similarly, in the present case, given the
distinct modes of use and significant difference in price, there is no
likelihood of confusion. In Sun Pharmaceuticals Laboratories Ltd. v.
Hetero Healthcare Ltd. & Anr., (2022) 92 PTC 536, the marks were
held not deceptively similar in view of different therapeutic uses,
price ranges and the fact that both were Schedule H drugs.
Additionally, the nature, purpose and intended consumer base of the
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Signed By:NEELAM
SHARMA
Signing Date:28.02.2026
14:57:20
Plaintiff’s Product under the Plaintiff’s Mark and the Infringing
Products are entirely distinct, therefore there is no likelihood of
confusion as has been held by this Court in RSPL Health Pvt. Ltd. v.
Sun Pharma Laboratories Ltd., 2025 SCC OnLine Del 4461.
6.5. The prefix, ‘FEXI’ is common to trade. The Plaintiff contends that the
“PH” in PHEXIN is similar to the “FE” in FEXIT. Over 43 Trade
Marks containing the prefix ‘FEXI / FEX’ are registered in Class 5.
These Marks are in the market, and the Plaintiff has not objected to
any of them. Both the competing marks have co-exited without
confusion of any nature. It is settled law that where Marks are not
identical, the Court must assess the likelihood of confusion and the
reputation of the Plaintiff’s mark as has been held in Renaissance
Hotel Holdings Inc. v. B. Vijaya Sai & Ors., (2022) 5 SCC 1.
6.6. The Defendant has been dealing with the Defendant’s Products since
2007 and the same have been listed on the Defendant’s website since
2015, however, the Plaintiff has failed to seek an injunction against
the use of the Impugned Marks, therefore, the Plaintiff is not entitled
to obtain an injunction.
REJOINDER SUBMISSIONS ON BEHALF OF THE PLAINTIFF
7. The learned Counsel for the Plaintiff made the following rejoinder
submissions:
7.1. The Plaintiff was not aware of the Defendant’s use of the Impugned
Marks, and even if without prejudice the user date of the Impugned
Marks is accepted to be correct, the Plaintiff is still the prior user of
the Plaintiff’s Mark. Further, a mere delay in filing a Suit does not
disentitle the Plaintiff to the grant of equitable relief of interimSignature Not Verified CS(COMM) 896/2025 Page 8 of 16
Signed By:NEELAM
SHARMA
Signing Date:28.02.2026
14:57:20
injunction and delay in filing a suit is not a defence in a case of
infringement as has been held by the Supreme Court in Midas
Hygiene Industries P. Ltd. V. Sudhir Bhatia and Ors., (2004) 3 SCC
90.
7.2. The Plaintiff’s Mark and the Impugned Marks are deceptively similar
when compared as a whole in their entirety. Further, it has been held
in the case of Automatic Electric Limited vs. R.K. Dhawan & Anr.,
(1999) 19 PTC 81, that the first syllable of the mark is the most
important while adjudging deceptive similarity between the marks.
7.3. When it comes to pharmaceutical goods, courts have held that the
difference in form and mode of administration is irrelevant for the
purpose of adjudicating on the aspect of infringement / passing off.
Hence, Plaintiff’s Product being tablets and the Defendant’s Products
being ointment are irrelevant. With respect to the products being
Schedule ‘H’ prescription drugs, it has been held by the Apex court
that pharmacists are not infallible to confusion and the fact that the
drugs in question are sold under prescription alone is not sufficient to
prevent confusion which is otherwise likely to occur.
7.4. The Defendant has failed to show that ‘PHEXI’ or ‘FEXI’ are
common to trade. The Trade Mark search report it seeks to rely on is
irrelevant as courts have clarified that a Mark or its part being
common to the ‘Trade Marks Register’ does not imply that it is also
‘common to trade’ as one may choose to register the mark and leave it
unused and such registrations cannot divest the Plaintiff’s Mark of
distinctiveness, or disentitle the Plaintiff to an injunction.
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Signed By:NEELAM
SHARMA
Signing Date:28.02.2026
14:57:20
7.5. Further, it is for the Defendant here to show that there is substantial
use of the third-party marks it seeks to rely on along with the extent of
trade in such products and how they pose a threat to the
distinctiveness of the mark asserted by the Plaintiff. The Defendant
has failed to demonstrate any of the above and, hence, the Defendant
has not succeeded in substantiating its plea that ‘PHEXI’ being
common to trade. The Plaintiff cannot be expected to run after every
infringer and the same cannot be used as a defence by the Defendant
against the Plaintiff’s claim against it as has been held in
GlaxoSmithKline Pharamaceuticals Limited v. Horizon Bioceuticals
Pvt. Ltd. & Anr., 2023:DHC:2390, and Dr. Reddy’s Laboratories Ltd.
vs. Reddy Pharmaceuticals Ltd., 2004 (29) PTC 4.
ANALYSIS AND FINDINGS:
Deceptive Similarity of the Impugned Marks to the Plaintiff’s Mark
8. The Plaintiff claims to be one of the biggest manufacturers of
pharmaceutical products in India. The Plaintiff has obtained registration over
the Mark, ‘PHEXIN’ in Class 05 since the year 1984.
9. A comparison of Plaintiff’s Mark and the Impugned Marks prima
facie shows that both marks are phonetically similar. The nature of the goods
for rival marks is similar as the Plaintiff and the Defendant are dealing in a
similar category of pharmaceutical products. The consumer base and the
class of consumers is also similar.
10. The Plaintiff’s Mark serves as a source indicator for the products
provided by the Plaintiff. Therefore, the Plaintiff’s Mark has attained a
distinctive character and have become identifiers and distinguish the goods
of the Plaintiff from those of other parties, including, from those of the
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Signed By:NEELAM
SHARMA
Signing Date:28.02.2026
14:57:20
Defendant. By extensive, continuous, and prolonged usage, the public at
large commonly associates the Mark ‘PHEXIN’, with the Plaintiff. The
Impugned Marks are deceptively similar to the Plaintiff’s Mark.
Likelihood of Confusion
11. The likelihood of confusion amongst the minds of the consumers is
very high given the deceptive similarity between the Plaintiff’s Mark and
Impugned Marks. The use of the Impugned Marks by the Defendant is likely
to cause confusion that the Defendant is associated with the Plaintiff as the
Impugned Marks. It is trite law that mere likelihood of confusion is enough
to establish a case of infringement of Trade Marks and actual confusion is
not required to be demonstrated.
12. Further, the test of confusion is to be seen from the perspective of an
average person with imperfect recollection getting confused and in view of
the Plaintiff’s Mark and the Impugned Marks being almost phonetically
identical, any ordinary person would get confused and would not be able to
distinguish between the Plaintiff’s Mark and the Impugned Marks. A
consumer of average intelligence and imperfect recollection would be
unable to distinguish between the competing products. The substantial
similarity in the competing Trade Marks coupled with the confined branding
space, significantly increases the risk of confusion in the minds of the
public.
13. In addition to the adopting a phonetically and visually deceptively
similar Mark, the Defendant has also adopted the Impugned Trade Dress,
which has been copied from the Plaintiff’s Trade Dress in terms of colour
combination and placement of features. India being a multilingual country
and there being close phonetic similarity between the rival Marks, there are
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Signed By:NEELAM
SHARMA
Signing Date:28.02.2026
14:57:20
high chances of slurring of the Plaintiff’s Mark and the Impugned Marks.
There exists high likelihood of confusion and deception apart from
likelihood of injurious association in the minds of consumers. The Supreme
Court in Cadilla Healthcare (supra) and this Court in Glenmark
Pharmaceuticals (supra) and Sun Pharma Laboratories (supra) have held
that while judging deceptive similarity between competing marks used in
pharmaceutical sector, stricter approach is required to be adopted.
14. The pharmacist, chemists are not immune to mistakes, and the
handwriting of the doctors are mostly illegible, thus confusion and deception
is inevitable. Public interest supports lesser degree of proof showing
confusing similarity in the case of Trade Mark in respect of medicinal
products as against other non-medicinal products. Confusion between
medicinal products may be life threatening, not merely inconvenient and
could have dire effect on public health. Both the Plaintiff’s Product and the
Infringing Products being Schedule H drugs, which are only sold by
prescription and the mode of administration of the Plaintiff’s Product and
the Defendant’s Products being different, does not rule out the possibility of
confusion. There is a likelihood of confusion between the Plaintiff’s Mark
and the Impugned Marks and, therefore, the decision in Renaissance Hotel
Holdings (supra) does not further the case of the Defendant.
15. It is trite law that the initial interest confusion test proceeds on the
principle that confusion in the minds of consumers may arise at the
preliminary stage, prior to the actual purchase being completed. At the point
of finalising the transaction, the consumer may no longer be in doubt as to
the true origin of the goods or services. Nonetheless, even such transient
confusion at the initial stage is sufficient to meet the requirement of
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Signed By:NEELAM
SHARMA
Signing Date:28.02.2026
14:57:20
deceptive similarity under Section 29 of the Trade Marks Act. 1999. The
infringer’s objective may be served merely by diverting the consumer’s
initial attention. The consumer may, thereafter, consciously opt for the
infringer’s product on account of its own characteristics, with complete
knowledge that it is unconnected with the registered Trade Mark.
16. The Defendant has failed to come up with a plausible justification for
coming up with the Impugned Marks, accordingly, the use of the Impugned
Marks, is prima facie dishonest.
17. The Defendant’s use of the Impugned Marks appears to be with the
intent of causing confusion in the minds of the customers to increase the
revenue of the Defendant by adopting the Impugned Marks which are
deceptively similar to the Plaintiff’s Mark.
Goodwill and Reputation
18. The Plaintiff has advertised and promoted the Plaintiff’s Product
under the Plaintiff’s Mark in India over the years. The consolidated
advertising and promotional expenditure incurred annually by the Plaintiff
for the products under the Plaintiff’s Mark demonstrates the goodwill and
reputation acquired by the Plaintiff’s Mark. The Plaintiff has spent a
significant amount in India for promoting the Plaintiff’s Product under the
Plaintiff’s Mark and also won various awards and received recognition for
its high-quality pharmaceutical products.
19. It is implausible that the Defendant was not aware of the Plaintiff and
the Plaintiff’s Mark considering the overwhelming goodwill of the Plaintiff.
Accordingly, the use of the Impugned Marks is prima facie dishonest and
appears to be an attempt to ride on the goodwill and reputation of the
Plaintiff.
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Signed By:NEELAM
SHARMA
Signing Date:28.02.2026
14:57:20
Passing Off:
20. The Plaintiff has made a prima facie case of passing off as they have
shown substantial goodwill for the goods under the Plaintiff’s Mark through
the revenue earned by the Plaintiff and the awards received by the Plaintiff
in the field of medicine across the globe and in India. As the Plaintiff has
been able to demonstrate the likelihood of confusion, the Plaintiff is likely to
suffer loss of reputation, if the Infringing Products are allowed to pass off as
those of the Plaintiff.
21. The Plaintiff has established that the Defendant has not only infringed
the Plaintiff’s Mark, but the Defendant has also tried to pass off the
Infringing Products as the products of the Plaintiff by using the Impugned
Trade Dress.
Generic and Common to Trade
22. It is contended by the Defendant that the prefix ‘FEXI’ is generic and
common to trade and a bare perusal of the Trade Marks Registry shows
various registrations with the prefix ‘FEXI’. This Court in GlaxoSmithKline
Pharamaceuticals (supra) has clarified that ‘common to register’ is different
from ‘common to trade’. The burden to prove that the prefix, ‘FEXI’ is
common to trade is on the Defendant and this burden cannot be discharged
by citing the various marks which are merely registered in the Register of
Trade Marks. Such Marks are not detrimental to the distinctiveness of the
Plaintiff’s Mark and does not bar the Plaintiff from obtaining an injunction
against the use of Marks which are identical and / or deceptively similar to
the Plaintiff’s Mark.
23. The Plaintiff’s Mark has amassed considerable goodwill and is neither
generic, descriptive or common to trade. The Mark ‘PHEXIN’, with respect
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Signed By:NEELAM
SHARMA
Signing Date:28.02.2026
14:57:20
to pharmaceuticals is linked exclusively with the Plaintiff and therefore, the
defence of generic and common to trade is not available to the Defendant.
24. The Plaintiff is not expected to sue every small infringer and use of
Marks, deceptively similar to the Plaintiff’s Mark, by third-parties and is not
a valid defence against infringement of Trade Marks as has been held in
GlaxoSmithKline Pharamaceuticals (supra), and Dr. Reddy’s Laboratories
(supra).
CONCLUSION
25. Having considered the submissions advanced by the learned Counsel
for the Parties, the pleadings and documents on record, a strong prima facie
case has been made out on behalf of the Plaintiff for grant of an interim
injunction.
26. The Plaintiff has established its prior user as well as goodwill and
reputation, on the basis of the documents on record. Injunction is a relief in
equity, and in view of the aforesaid discussion, the same is in favour of the
Plaintiff and against the Defendant. Further, the balance of convenience also
lies in favour of the Plaintiff and against the Defendant and grave prejudice
is likely to be caused to the Plaintiff if interim injunction as prayed for is not
granted in favour of the Plaintiff and against the Defendant.
27. The learned Counsel for the Plaintiff has relied upon Midas Hygiene
(supra) and Hindustan Pencils (supra) to submit that delay in filing a suit is
not a ground to deny injunction, when the adoption is in itself dishonest. In
cases of infringement of Trade Mark an injunction must follow and mere
delay, if any, in seeking the remedy of injunction cannot be a ground to deny
injunction to the Plaintiff.
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Signed By:NEELAM
SHARMA
Signing Date:28.02.2026
14:57:20
28. This is a case of triple identity where the Plaintiff’s Mark and the
Impugned Marks are deceptively similar, the product category is identical
and the trade channel as also the consumer base is identical. The identity in
the Impugned Marks is so close to the Plaintiff’s Mark that they are
indistinguishable.
29. Accordingly, the Defendant, its directors, proprietors, partners,
associates, assigns or assignee in interest, heirs, successors or successors in
interest, permitted assigns, sister concerns or group companies, distributors,
dealers, wholesalers, retailers, stockiest, agents and all others acting for and
on their behalf are restrained from using, soliciting and advertising in any
manner including on the internet and e-commerce platform, directly or
indirectly dealing in pharmaceuticals and veterinary products under the
Impugned Marks, ‘FEXIT’, ‘FEXIT-B’ and ‘FEXIT-M’, or the Impugned
Trade Dress ‘ ‘ and / or any other Trade Mark
or Trade Dress which is identical and / or deceptively similar to the
Plaintiff’s Mark, ‘PHEXIN’ or the Plaintiff’s Trade Dress
‘ ‘ so as to cause infringement and / or passing off of
the Plaintiff’s Mark or the Plaintiff’s Trade Dress.
30. The present Application stands disposed of.
TEJAS KARIA, J
FEBRUARY 28, 2026
‘AK’
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Signed By:NEELAM
SHARMA
Signing Date:28.02.2026
14:57:20
