DRUGS ARE NOT SWEETS- CONFUSION BETWEEN MEDICINES

This article was written by Tanya Sharma.

INTRODUCTION

The Indian pharmaceutical industry has witnessed a high-quality boom in the past decades, in phrases of marketplace shooting and contribution to the Gross Domestic Product of our country. India’s home pharmaceutical marketplace is envisioned at USD 41 billion in 2021 and is probably to attain USD 65 billion with the aid of using 2024 and in addition expand to USD 120-one hundred thirty billion with the aid of using 2030 Considering the promising future of the pharmaceutical enterprise, the Government of India is diligently worried in selling this enterprise, with the aid of using introducing and implementing regulations, that are at par with the worldwide standards. But the huge problem which is a rising challenge for the trademark industry is that there are a lot of different goods which are considered in the same class such as both pharmaceuticals and veterinary items are in the same class but the consequences because of confusion can be very dangerous. India’s judiciary played a great role in clearing the glass in this case.[i]

PHARMACEUTICAL INDUSTRY AND PROTECTION OF DRUGS IN INDIA

Trademark registration drastically protects drugs of diverse pharmaceutical companies and allows delivery it outstanding value in keeping an emblem name for the drug inside the market. The pharmaceutical industry mainly money owed for almost all of the trademark registrations in comparison to some other sectors in India. The pharma industry is very much flourished in India

But with the development, the duplication of medication is likewise growing every day however the only trouble that the pharma industry is facing right now is the safety of their drug as the drug name is commonly derived primarily based totally on the treatment carried out through the drug, salt composition of the drug, or another associated clinical term, due to which it does now no longer have an inherent one of a kind character; however ‘distinctiveness’ is a requisite, for a mark to qualify as a trademark.

PROTECTION UNDER TRADEMARKS ACT

The safety of pharmaceutical trademarks is relatively more difficult than different trademarks. Section 9(a)[ii] prohibits the registration of emblems that are descriptive, or that are without any distinctiveness, i.e., now no longer able to distinguish the products or offerings of one source to some other and it is of such nature as to misinform the general public or purpose confusion. However, the trademark has received a secondary which means or has won special individuals as a result of its extended utilization and reputation among the consumers.

Specifically, in the case of pharmaceutical trademarks, the brand name or drug name is generally derived primarily based totally on the remedy achieved with the aid of using the drug, the salt composition of the drug, or every other associated scientific term, due to which it does now no longer have an inherent special individual; however ‘distinctiveness’ is a requisite, for a mark to qualify as a trademark. As we already mentioned above securing one’s product is necessary.

But how? According to Section 11[iii] trademark need to not be similar to an existing trademark, that’s possible to confuse clients. During procurement of pharmaceutical products or drugs, the customers have to be capable of without problems differentiating among the goods according to the brand name or drug name and trade dress, to keep away from or lessen errors. Hence, the method of the safety of the brand name or drug name will become hard and proof with reference to the secondary that means or received distinctive character is the thing to determine on distinctiveness.

Another considerable provision in this regard is laid down in Section 13 of the Trade Marks Act, 1999, which states that a trademark needs to not be any name of chemical elements, compounds, and International Non-proprietary Names (INNs) that have been declared with the aid of using the World Health Organization and notified by the Registrar of Trademarks in 2012, or which can be deceptively just like the INNs. As the indexed INNs are commonplace names of energetic pharmaceutical ingredients, no pharmaceutical company will have monopoly rights over it, and subsequently may be utilized by all.

HOW CONFUSION IN CASE OF MEDICINES COULD BE DANGEROUS

In Cadila Health Care Ltd v Cadila Pharmaceuticals Ltd, the Supreme Court, after considering its earlier decisions including the judgment in the case of F Hoffmann-La Roche & Co Ltd v Geoffrey Manner & Co Ltd,2187 observed as under:

The public interest would support a lesser degree of proof showing confusing similarity in the case of the trademark in respect of medicinal products as against other non-medicinal products. Drugs are poisons, not sweets. Confusion between medicinal products may, therefore, be life-threatening, not merely inconvenient. Noting the frailty of human nature and the pressures placed by society on doctors, there should be as many clear indicators as possible to distinguish two medicinal products from each other. It is not uncommon that in hospitals, drugs can be requested verbally and under critical pressure situations. Many patients may be elderly, infirm, or illiterate. They may not be in a position to differentiate between the medicine prescribed and bought which is ultimately handed over to them.2188

The apex court held that in a country like India where there is no single common language, a large percentage of the population is illiterate and a small fraction knows English. In dealing with a case of this nature the court should not lose sight of the fact that the purchasers may have absolutely no knowledge of the English language or of the language in which the trademark is written and to whom different words with a slight difference in spelling may sound phonetically the same.[iv]

ROLE OF JUDICIARY TO ELIMINATE CONFUSION

Indian judiciary played a very active role in eliminating the confusion in order to ensure the safety of citizens and they laid down various in order to settle the law idea about pharma and veterinary products. The landmark judgment concerned with confusion in pharma is Cadila Health Care Ltd. Vs. Cadila Pharmaceuticals Ltd[v] this case brings a revolutionary change in the pharma industry as The Hon’ble bench laid down factors for deceptive similarity, tailored according to the facts and circumstances of an individual case. These factors are as follows:

1. The nature of marks (word or label, or composite marks)
2. Degree of similarity between the competing marks, including phonetic and visual similarity
3. Nature of the disputed products
4. Demography of the area where the goods are used and the class of purchasers
5. The mode of purchasing the items
6. The similarity in the goods.

This judgment is the landmark judgment that actually pointed out how dangerous it can be for human life if the medicines will be confused with each other. Another case in which the court relied on cadila case is M/S Mankind Pharma Ltd vs M/S Neospark Drugs & Chemicals in this case the issue was between two similar medicines but one was for human consumption and another was for veterinary use or animal use. The parties relied on various judgments including candila to establish that there can be instances when two products of class 5 have similar trademarks but the nature of the product or medicine can be different like maxical is human use medicine but the maxCal gel of defendant is for veterinary/animal use which can be confusing and dangerous for consumers if sold together.

In the end, it became held that t the impugned trademark has been intentionally designed in this sort of way to pass off its items under the trademark “Maxical” of the plaintiff, and consequently it is in all likelihood to reason confusion inside the minds of the customers and they’ll take the product of the defendant taking it to be of plaintiff’s product and each the goods pertain to pharmaceutical and if the defendant’s product is mistakenly taken via way of means of a consumer believing it to be of plaintiff’s product, it can have a catastrophic impact at the human health. Balance of comfort also lies in favor of the plaintiff and the plaintiff shall go through irreparable loss and harm if the injunction is not granted.

In Charak Pharma Pvt. Ltd vs Glenmark Pharmaceuticals Ltd on 21 January, 2014[vi] The Hon’ble Supreme Court while noting this aspect has clearly held that when the drugs have marked differences in their compositions with completely different side effects, the test should be applied strictly as the possibility of harm resulting from any kind of confusion by the consumer can have unpleasant if not disastrous results. In the words of the Hon’ble Supreme Court, “Public interest would support a lesser degree of proof showing confusing similarity in the case of trademarks in respect of medicinal products as against other non-medicinal products. Drugs are poisons, not sweets. Confusion between medicinal products may, therefore, be life-threatening, not merely inconvenient”.” In this case, also the court relied on cadila.

STEPS TO ELIMINATE LACK OF CLARITY ON PHARMA AND VERTINARY

 Due to a lack of clarity in different medicines which are in the same class of trademark lots of people die because of wrong medicine. More than 138 million patients are harmed every year by doctors’ errors, the World Health Organization (WHO) warned, just a few days before celebrating the first World Patient Safety Day, with which it seeks to raise awareness of this ongoing tragedy.  It is important to amend the trademarks act in order to get clarity of different goods in different classes. After careful consideration of the provisions under the Trade Marks Act, 1999 and Section 17B of the Drugs and Cosmetics Act, 1940, established the likelihood of passing off and added that it was a case of deceptive similarity, which could aggravate adverse effects on the health of the greater public.

To conclude it’s very important to eliminate and be more careful when it comes to medicines as wrong medicines can be proved to be life-threatening as justice Kirpal said “Drugs are poisons, not sweets” he further said that confusion between medicinal products may, therefore, be life-threatening, not merely inconvenient.

[i] TANYA SHARMA

[ii] Trademark Act, 1999,

[iii] Trademark Act, 1999

[iv] Venkateshwaran Trademarks and passing off, vol. 1

[v] , 2001 PTC 541 (SC)

[vi] MANU/MH/0065/2014