11 June 2019

Trademarks – Nutraceuticals are akin to medicines for test of passing off

11th June 2019

In a case involving registered trademark names of nutraceuticals with both products having ‘GLO’ as prefix, the Delhi High Court has held that mere fact that products are not pharmaceuticals, is not convincing for adoption of less stringent test for passing-off.

It held that just because the nutraceuticals are termed so, as they contain ingredients derived from plants, it does not mean that a lenient test needs to be adopted in respect of these products.

The Court was of the view that the test applicable to pharmaceutical products would be applicable even to nutraceuticals.

Granting interim injunction, the Court observed that nutritional food supplements and nutraceuticals are akin to medicines and pharmaceutical preparations, and hence confusion is to be avoided.

The Court in this regard observed that the manner of approval of nutraceuticals and nutritional food supplements under the FSSAI regime shows that these are highly regulated products and cannot be manufactured without a license.

It was noted that the product itself, the packaging, the labels, the content of the labels, specific disclaimers and conditions have all to be approved by the Food Authority and that they are usually consumed on the advice of medical practitioners.

Relying on the Supreme Court decision in the case of Cadila, the High Court in the case of Sun Pharma Laboratories Ltd. v. Ajanta Pharma Ltd. observed that greater vigilance is required where products are meant to cure same ailments.
It held that the principles laid down in Cadila in respect of medicines and pharmaceuticals, would equally apply to products which are nutraceuticals and nutritional supplements.
Considering various other factors, like that the suffixes EYE and TAB are insufficient to create any distinction between ‘GLOEYE’ and ‘GLOTAB’, it was held that the defendant was not a bona fide adopter of the mark ‘GLOTAB’.

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