The pharmaceutical business in India has developed and shown a great rise and rapid growth in its present situation and this is apparently due to the fact that Indian Pharmaceutical meets approximately up to 50% of the different types of Vaccine demand of the World, 40% demand for generic in USA and in UK there is demand of 25% for all Indian Pharmaceutical medicines as per the findings of IBEF (Indian Brand Equity Foundation). The pharmaceuticals domestic business turnover is approximately 20 Billion US dollars (Rs 1.4 lakh cr). Indian pharmaceuticals Industry as per the findings of IBEF is expecting to grow approximately up to100 Billion US Dollar and market for medical device is expected the growth of 25 Billion US Dollar by the year 2025.
As we are aware that trademark is a name or logo given to identify or recognise goods or services and it can even be a sign or number or a letter by which a product can be identified. Like other goods and services in an Economy, Pharmaceutical Companies as well as its products i.e Medicinal Drugs, etc has to be trademarked for its proper identification and recognition as such registration helps for further enhancing the growth of Pharma Companies in India and also protects the products of genuine Proprietors from being misused by spurious dealers. In this present 21st century era even shapes, sounds are recognised as trademarks i.e. shape of bottle can be registered as trademark. In India the sound mark registered in pharma business is the sound of ‘HI’ ‘SA’ ‘MI’ ‘TSU’ and this was under musical notation sung and was applied by Hisamitsu Pharmaceutical Co Inc of Japan.
In the case of pharma goods the consumers should be able to make difference between two products as far as the name or packaging and trade dress is concerned. Hence the Pharmaceutical Companies have to coin a unique name or trademark for its products and by doing so it helps to safeguard infringement or passing off of its goods or services. There it is always an challenge while coining a pharmaceutical product’s name as the proprietor has to derive a secondary meaning of the name given due to the fact that such medicinal goods names or trademarks are derived or given on the basis of organ, ailment or chemical composition contained in a particular medicinal drugs.
As far as trade marking in this area is concerned the Trademark registration Authority as well as the Courts in India gives it a special consideration and are more vigilant so that there is no misuse made by anyone in the society. .This is so because there can be fatal consequences if anyone infringes or copy the trademark of Pharmaceutical drugs. The trademark Act 1999 does not allow registration of generic or chemical names for medicinal drugs, etc.
I would like to highlight a infringement case of Win Medicare Pvt. Ltd v/s Galpha Laboratories Ltd & Others, where the name Betadine was used by the plaintiff for its product and the defendant started using the name Bectodine M and also applied for registration of its trademark. The Delhi High Court on the principle of Likelihood of confusion held that the defendant in spite of knowing adopted a deceptively similar trademark of the Plaintiff and hence granted an injunction in favour of the Plaintiff.
In an interesting judgment passed by Delhi High Court in the case, Sun Pharma Laboratories Ltd v/s Ajanta Pharma Ltd it was held that for nutraceutical as well as for pharmaceutical products infringement and passing off test remains same.
The remedies available for infringement and passing off of pharmaceutical products as well as goods and services of other nature i.e. Non-Pharmaceutical products are same namely, Civil remedy by filing an civil suit for infringement action under Trademarks Act 1999 and passing of action which is a common law remedy, there is also Administrative remedy available under trademarks Registry as well as IPAB (Intellectual Property Appellate board), Criminal action under the Trademarks Act as well as IPC (Indian penal code) 1860 can also be availed by the aggrieved party. There are also remedies under the Custom laws where import or export of pharmaceutical products are conducted by violating or infringing trademarks of genuine proprietors.
In any society for controlling this menace of infringement of pharmaceutical drugs, along with trademark authorities and the Courts in India it is also duty of every citizen to be vigilant while purchasing the medicine. The pharmaceuticals also have to be more vigilant to make sure that their trademarks are not infringed as many of these trademarks, over a period of years have earned a huge goodwill and reputation and only then we will be able to fight infringement or passing off of these trademarks in India. It is also the duty of Regulatory bodies to make sure that they approve only those pharmaceutical drugs whose trademarks does not infringe the existing products names or logos.