08 June 2021

IP rights cannot be allowed to be violated even if drugs for use against Covid

In a suit for alleged infringement of the copyright in the artistic work in the trade dress and attempt to pass off and infringe the trademark of the plaintiff in the word ‘Respule’, the Madras High Court has advised the defendant to suitably alter not only the trade dress, layout colour combination, design and artistic work on the label but also the words which are deceptively similar to plaintiff's trade mark.

The defendant had in its application for vacation of an earlier interim order injuncting them from selling the allegedly infringing goods, prayed that the manufactured products may be allowed to be sold in the market as the medicines were required for treatment of patients with Covid symptom. The defendant had also pleaded that they would adopt a new package/label totally different from the one which was being used by them.

However, affirming its earlier interim order of injunction, the Court was of the view that it cannot allow a party to violate another person’s intellectual property rights and remain a mute spectator where there also is an attempt to pass-off the goods, notwithstanding the fact that the country is facing unprecedented medical emergency and the drugs were for treating Covid patients.

The High Court noted that though it was not argued, the conduct of the defendant bordered with violation of provisions of the Drugs and Cosmetics Act, 1940 and the Rules made thereunder.

The plaintiff in the case Sun Pharmaceutical Industries Ltd. v. Cipla Limited was selling its products as ‘Budecort Respules’ and ‘Duolin Respules’, while the defendant was using names ‘Budefex Respules’ and ‘Duoz Respules’ with the trade dress which was, according to the Court, prima facie slavish imitation of the plaintiff's label wrapper.

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