When “Slightest Possibility” Meets Burden of Proof: Delhi High Court’s Bevatas V. Bevetex Ruling

By Rima Majumdar and Anukriti Banerjee

Introduction

In a recent ruling concerning trademark infringement in pharmaceuticals, a Division Bench of the Delhi High Court set aside a permanent injunction that restrained Intas Pharmaceuticals from selling its anti-cancer drug under the mark BEVATAS.[1]

The decision is significant for two reasons. First, it pushes back against the principle of “even the slightest possibility of confusion” which is standard in pharmaceutical cases due to the Supreme Court’s ruling in Cadila Healthcare (2001). Second, it insists that at the post-trial stage, a finding of likelihood of confusion must rest on actual evidence from the relevant class of purchasers, not on the judge’s own visual comparison of the marks.

Facts of the Case

The suit was filed by Sun Pharma Laboratories alleging infringement of its mark BEVETEX[2] by Intas Pharma for using the mark BEVATAS for identical class of goods. The suit was initially filed in the Saket District Court wherein initially the Plaintiff’s ex-parte injunction was refused, and subsequently after hearing both sides, the interim injunction was dismissed for the reason that BEVATAS and BEVETEX were dissimilar. The said order was upheld on appeal by both the High Court and then the Supreme Court in SLP.

After completion of trial, the Plaintiff revalued the reliefs in the suit. Due to this revaluation the pecuniary value of the suit was enhanced, and the suit was transferred to the Original Side of the High Court.

The learned Single Judge decreed the suit in favour of Sun Pharma and permanently restrained Intas from using the mark ‘BEVATAS’, holding it to be deceptively similar to the mark ‘BEVETEX’ and likely to cause confusion in the minds of the consumers. Aggrieved by this, Intas filed an appeal.

Submissions by Intas Pharma on appeal

1. Intas claimed it had independently coined BEVATAS by combining “BEVA” (from Bevacizumab) and “TAS” (from its corporate name, Intas). Hence it was a honest adoption.
2. By the time of the appeal, BEVATAS already claimed to be the market leader among Bevacizumab products in India, with roughly 22% market share, administered to over 75,000 cancer patients, with about 12,000 patients then undergoing treatment. Therefore, being restrained at this stage would cause Intas irreparable loss.
3. The prefix “BEV”/”BEVA” is common to the trade because it is taken from the International Nonproprietary Name (INN) ‘Bevacizumab’ and used by numerous other manufacturers.
4. When compared as a whole, both the marks are dissimilar.
5. The drugs of both parties are associated with entirely different active ingredients/chemical compounds.
6. The marks should not have been dissected by the Single Judge.
7. No credible evidence of actual confusion was produced by the Plaintiff, its witness admitted in cross-examination that no such instance existed.

Submissions by Sun Pharma on appeal

1. The marks in question are similar and when it comes to pharmaceuticals, even the slightest bit of confusion is sufficient.
2. Even in cases involving intravenous or prescription drugs, Courts have consistently found deceptive similarity despite differences in formulation, administration, or composition, emphasizing that even slightest possibility of confusion, particularly in medicinal products, warrants injunction due to the serious risks it contains against public health.

Court’s Analysis

1. No commercial loss and false pleadings filed: Sun Pharma admitted during the course of hearing that it has not suffered any commercial loss or diversion of sales in relation to its anti-cancer drug ‘BEVETEX’. Consequently, the allegations pertaining to passing off, unfair competition, misrepresentation, misappropriation of goodwill and reputation, etc., were held to be devoid of any factual foundation.

Furthermore, this stand of having suffered no commercial loss was based on facts already within Sun’s knowledge prior to the institution of the suit and not on any subsequent discovery. This establishes that the allegations of any monetary losses in the plaint were false and were pleaded to create an illusion of cause of action and a false sense of urgency.

2. Misapplication of the statutory provision: The plaint invoked Section 29 generally without specifying a sub-section, which the court treated as a deliberate device allowing Sun Pharma to shift between mutually exclusive provisions. Since the marks were not identical and the goods were not identical, the Section 29(3) presumption (which applies only to identical marks for identical goods under 29(2)(c)) was unavailable. The dispute was therefore properly confined to Section 29(2)(b) stating that the similar mark, identical or similar goods under which the plaintiff bears the burden of proving likelihood of confusion.

   Although both the marks deal with carcinogenic medicine but, it would be wrong to say that the goods are identical as one is a paclitaxel injection while the other is a monoclonal antibody. Therefore, in such scenario, burden is thereby created under Section 29(2)(b) for the Plaintiff to show actual incidences of confusion.

3. Failure to discharge the evidentiary burden: Where goods are not closely similar, likelihood of confusion cannot be presumed from a visual comparison of marks; it must be proved by witnesses who can speak to how the marks operate in the market. Sun Pharma’s own pleading identified the chemist as the person likely to be confused, yet it examined only its Sales Manager (PW-1), who merely parroted the plaint, admitted he did not know how either drug was administered, and relied on a 2011 newspaper article about an unrelated dispensing error. The court found PW-1 either incompetent or untruthful, and his testimony discarded. No oncologist, chemist, or nurse was examined, an omission the court treated as fatal, raising the inference that no such evidence existed because there was no likelihood of confusion.
4. The Single Judge applied the wrong test: The Single Judge’s decision on likelihood of confusion being decided on a bare comparison of the marks plus the fact that both were anti-cancer drugs, without adverting to any evidence was wrong. A prima facie visual comparison may suffice at the interim stage, but at final adjudication it cannot substitute for an evidence-based finding of fact otherwise there would be no purpose in directing a trial at all.
5. The drugs are dissimilar: Working through the comparative tables on record (which Sun Pharma itself had supplied), the bench found the drugs differed in molecule (a biologic monoclonal antibody versus a synthetic cytotoxic agent), indication, line of treatment (first-line versus second-line), dosage, reconstitution, and infusion protocol. The only overlap was that they both dealt with metastatic breast cancer, and thus such overlap was illusory because the drugs are deployed at different treatment stages. They were “not even closely similar.”
6. The marks are not similar: Applying the anti-dissection rule alongside the principle that publici juris elements warrant less weight, the court emphasized the uncommon portions. BEV/BEVA being common to the trade, attention shifted to the distinguishing suffixes TAS and TEX and the differing vowel sounds (BEVA versus BEVE). Pronounced as beh-vuh-tas and beh-veh-tex, the marks produced distinct auditory impressions. The packaging, trade dress, color schemes, and prominent display of the respective molecules further distinguished the products visually.
7. Surrounding circumstances under Cadila: Even assuming any residual doubt, the bench tested each Cadila factor: distinct packaging, dissimilar “idea” of the marks, a sophisticated and cautious class of purchasers, a strictly regulated mode of purchase requiring an oncologist’s prescription, and administration by trained nurses under oncologist supervision. The suggestion that a chemist might deliberately dispense the wrong drug for want of stock was dismissed as describing gross negligence, not confusion and trademark law tests confusion against a reasonably prudent person, not a reckless one.
8. Distinguishing the plaintiff’s authorities: The court found Sun Pharma’s cited cases were mostly interim orders, or involved identical molecules (United Biotech, FORZID/ORZID), or on self-administered products (Sun Pharma v. BDR, Novartis v. Crest, Glenmark v. Sun Pharma), or on prima facie views and none dispensing with the requirement of a holistic, evidence-based assessment at final trial.
9. No genuine public interest: The Plaint was vexatious from the point it was filed. Sun Pharma claimed that Intas was earning profits by misappropriating the IP rights of Sun Pharma, but later on during the trial they went on and stated they are solely prosecuting the suit in “public interest” and consequently abandoned its relief of passing off, misrepresentation, unfair competition, misappropriation of reputation and goodwill in its mark ‘BEVETEX’.
   The bench to this observed that the “public interest” framing was a red herring. Sun Pharma dropped damages because it had no sustainable passing-off claim, not out of altruism; the real interest in protecting the BEVETEX mark was commercial.

   The Bench further clarified that Intas manufactures the anti-cancer drug ‘BEVATAS’ from the molecule ‘Bevacizumab’ and Sun Pharma does not manufacture any anti-cancer drug from the molecule ‘Bevacizumab’, and hence it has no commercial interest in seeking an injunction against Intas. Further, again the drugs are different in its attributes and cannot be considered to have overlapping commercial periphery.

Author’s Analysis

This judgment is a corrective to the tendency of the Indian pharmaceutical trademark litigation, treating Cadila Healthcare v. Cadila Pharmaceuticals as an authority for an almost irrebuttable presumption that any phonetic overlap between two drug names creates actionable confusion. The Division Bench’s central insistence that Cadila prescribes a weighted, multi-factor inquiry, and that “even the slightest possibility of confusion” cannot mean “confusion presumed” is doctrinally sound and overdue.

The most consequential holding is procedural rather than substantive: at the post-trial stage, likelihood of confusion is a question of fact that must be proved by evidence from the relevant class of purchasers. By distinguishing sharply between the prima facie visual comparison permissible at the interim stage and the evidence-based finding required at final adjudication, the court restores meaning to the trial itself. A plaintiff who litigates a matter all the way through evidence, only to rest on the same bare comparison available at the injunction stage, has not actually discharged its burden. The adverse inference drawn from Sun Pharma’s failure to examine a single oncologist, chemist, or nurse despite being a resourced pharmaceutical company is a fair and disciplined application of evidentiary principle.

Similarly, the court was right to rely heavily on the publici juris status of BEV/BEVA on these facts. But this doctrine should not become a routine escape route every time a prefix comes from a molecule’s name. What really decided this case was not any single factor, but the combination of several evidentiary reliance on actual instance of confusion, identifying on the factors that whether the drugs are different; whether the suffixes are distinct; whether the buyers are sophisticated or discerning consumers, and whether the selling or marketing was within a controlled hospital environment.

Therefore, this judgment indeed creates a standard setting out loud that “slightest possibility of confusion” rhetoric will no longer substitute for proof.

[1] Intas Pharmaceuticals Ltd. v. Sun Pharma Laboratories Ltd., (RFA(OS)(COMM) 10/2026 ).

[2] Registration no. 410744, applied for in 1983 with the certificate received in 1990 in Class 5