In establishing trademark infringement, an inquiry requires determining whether the average consumer, on seeing two marks for associated goods and services, is likely to get confused or deceived on account of their deceptive similarity.
Since the confusion has to be determined from the perspective of the consumer, both the type of consumer and the nature of the products or services involved become relevant.
For instance, it has been held that in the case of medicinal products, strict measures have to be taken for determining confusion, since confusion in the medicinal products case may be life-threatening.
Similarly, another such category of products where an exception may be drawn is with so-called “hush products”.
Defining hush products
As the discreet term suggests, hush products refer to a category of products designed to address the personal, private or sensitive needs of a special class of consumers. Owing to the nature of the products and their intended use, the purchaser often attempts to maintain confidentiality and privacy in their use of such products.
Hence, these products tend to be purchased discreetly, and without much inquiry.
These products can vary widely from one country to another, depending on the social context in which they are made available to consumers. However, the common thread among all such products is taboo or associated stigma.
Among a predominantly large section of society, particularly in India, there is still hesitation to freely and openly discuss subjects such as menstruation and sexual health, despite concerted efforts to sensitise consumers. Against this backdrop, common examples of hush products include products aimed at maintaining or improving menstrual, reproductive and sexual health.
Examples include: feminine hygiene products such as sanitary napkins, tampons, menstrual cups, intimate washes and wipes; products related to reproductive health including uterine tonics, tablets and syrups; contraceptives like condoms and pills; adult diapers; and sexual health supplements.
Special buyer classes
In his book, Trademarks and Unfair Competition, the University of San Francisco School of Law’s emeritus professor Thomas McCarthy suggests that the buyer in such a scenario may not be a casual purchaser because of the inherent nature of the product, and will exercise less than normal inquisitiveness.
A classic illustration of this principle is the decision of the US Court of Appeals for the Third Circuit in Kotabs v Kotex. In this case, the plaintiff was registered proprietor of the trademark Kotex for sanitary napkins, bringing action for infringement and unfair competition against defendants using the mark Kotex and trade name Kotabs in respect of medicinal tablets for relieving menstrual pain.
The court held that the woman customer in this scenario was not a casual purchaser, but an “exceptional purchaser” buying sanitary pads who would understandably, through modesty, hesitate to make inquiries of a drug clerk about the purchased product and its origin.
Following this rationale, the court held the defendants liable for appropriating the plaintiff’s trademark and using it in a way to denote the common origin of the two products, thereby deceiving the public. This guidance was recently followed in the India case of Himalaya Wellness Company v Wipro Enterprises (2023) by a single judge of Delhi High Court.
To explain local background, drugstores in India often wrap sanitary napkins in newspaper or black polythene bags before putting them in a normal takeaway bag. This is clearly indicative and respectful of social stigma attached to menstruation. Evidently, the delineation of prospective buyers of hush products as exceptional purchasers is grounded in reality.
It follows that in the case of hush products, the standard of care exercised by a prospective buyer would be less than the ordinary level of attention or inquisitiveness. In another instance, teenage women buying birth control products surreptitiously may exercise less than the usual standard of care or inquisitiveness.
An exceptional purchaser prioritises privacy while seeking out products that allow them to address personal needs without unwanted attention. The emphasis is on the need for discretion and confidentiality in using these articles.
Therefore, in the current scenario, a low threshold for the likelihood of confusion ought to be maintained for products falling in the category of hush products, as has been rightly propounded in the above-mentioned case law and commentaries.
PRACHI AGARWAL is a partner and ADITI SRIVASTAVA is an associate at Anand and Anand in New Delhi
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