April 19, 2008

Medicines cannot have deceptively similar names: HC

In a significant order, the Bombay High Court recently ruled that medicines having the same composition but produced by different manufacturers cannot have deceptively similar names. The order was passed in a trademark infringement suit filed by Wyeth Holdings Corporation, which owns the trademark Folvite, a medicine used for prevention of vitamin deficiencies and anaemia, since 1946.

Wyeth Holdings had dragged Burnet Pharmaceuticals Pvt Ltd to court over the latter's move to change the name of its medicine from Folacid to Fol-V.

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Labelling the mark Fol-V to be deceptively similar to theirs, Wyeth alleged infringement and passing off. Relying on a SC judgment, which held that deceptive similarity in the case of medicinal products must be dealt with a greater degree of strictness in order to protect public from the serious consequences that may ensue, justice D.Y. Chandrachud restrained Burnet from using the mark Fol-V.

Chandrachud ruled that a less than strict standard cannot be applied on the hypothesis that the ailment, which the drug is intended to treat is not life-threatening, nor can the application of a lower standard be justified merely on the ground that the composition of the two drugs is the same and the confusion caused by mistaking one for the other would not result in danger to health. "Public interest lies in protecting the consumer against an unwary purchase of a deceptively similar product. The consumer must be protected against a reasonable possibility of confusion arising out of a deceptively similar mark," the judge said.

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Noting that Wyeth had been associated with the mark Folvite since 1946 and had built up a reputation and goodwill over the years, Chandrachud stated, "A manufacturer builds up a reputation for quality and standards assiduously over a length of time and an established mark assures to the consumer that the medicine which he has purchased is of a requisite quality that is associated with the mark."

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