September 25, 2018
Counterfeit Medicines- The Courts have recently come down heavily on pharmaceutical companies manufacturing counterfeit/ fake medicines by infringing trademark and copyright of right holders of pharmaceutical medicines. Counterfeiting of any product is injurious however counterfeit medicines and drugs pose serious health risks and can play havoc with the lives of people.
Case name: Shalina Laboratories Pvt. Ltd. and Anr. v. Twin Impex & anr.
“It is in good faith that consumers purchase medicines from reputed pharmaceutical companies, which have rightly earned their name and fame through their high quality drugs over the years. However, when the Court is confronted with infringers and fraudsters such as the present Defendants, who callously disregard the faith placed in them with the intent to hoodwink innocent consumers and fill their cofers at the cost of the health and safety of these trusting consumers, then the Court has no option but to come down heavily and unsparingly on such errant parties.”
In the case, the Plaintiff pharmaceutical company had lodged complaint about Defendants having copied substantial features of plaintiffs’ trademarks and infringement of copyright and passing of in respect of their pharmaceutical product.
On investigation it was discovered that the Defendants had infact copied all the features of the Plaintiffs’ trademarks / labels to the last millimeter and that it is not possible to distinguish one from the other.
By way of material available on record, the High Court of Bombay concluded that the adoption of word mark, art work, colour scheme, font style, manner of writing, and trade dress of the Defendants’ impugned products was fraudulent.
The High Court made a scathing attack on the act of the Defendants of manufacturing and selling counterfeit pharmaceutical products and remarked that this Court cannot feign ignorance of the consequences of the Defendants’ infringing activities upon the members of the public that consume their product.
The High Court in a similar context made reference to its recent judgment in the case of Glenmark Pharmaceuticals Ltd. v. Galpha Laboratories Ltd., wherein t5eh Court while quoting public health of paramount importance made the following observations:
“Drugs are not sweets. Pharmaceutical companies which provide medicines for health of the consumers have a special duty of care towards them. These companies, in fact, have a greater responsibility towards the general public. However, nowadays, the corporate and financial goals of such companies cloud the decision of its executives whose decisions are incentivized by profits, more often than not, at the cost of public health. This case is a perfect example of just that.”
The High Court of Bombay noting the dishonest conduct of the Defendants directed the Defendants to pay the costs of Rs.1,50,00,000/- and also give personal undertakings to the Court to the effect that the Defendants would immediately withdraw all products bearing the impugned marks “INASOL”, “TANZOL”, “SUPER PEPTI”, “BON APETIT”, “BIG APETITE”, “IBUCAB” and “IBUSAP” and their variants from the market and destroy the same.