Trademark Infringement In The Pharmaceutical Sector in India
India’s pharmaceutical business is booming, having grown by leaps and bounds in recent decades. The Indian government is making strenuous efforts to develop this industry by creating and enforcing legislation that is consistent with international standards. As the market grows and industry participants spend, protecting intellectual property rights is becoming increasingly crucial for enterprises.
Despite the fact that Section 13 of the Trade Marks Act of 1999 forbids the use of chemical names as trademarks, it is standard practice to name a drug after the organ it treats, the ailment it heals, or the main element in the treatment. No one can own a generic organ, sickness, or ingredient because it cannot be copyrighted.
As a result of the Trade Marks Registry allowing brand names incorporating the major chemical constituent, organ, or condition to be registered, there is a plethora of identical and often confusing trademarks for pharmaceuticals. The current framework for dealing with this challenge, as well as the function of intellectual property and general medicine branding in India, are discussed in this blog.
Trademark similarity in the pharmaceutical sector: Framework
In the case of pharmaceutical trademarks, the brand name or drug name is frequently taken from the medicine’s therapy, salt composition, or any other associated medical word, and hence lacks inherent distinctiveness. ‘Distinctiveness,’ on the other hand, is a prerequisite for a mark to qualify as a trademark. As a result, the general public becomes perplexed. According to Section 11 of the Trade Marks Act, 1999, trademark registration in India must not be confusingly similar to a preceding brand.
To prevent or lessen errors, customers should be able to rapidly discern between things based on the brand name, drug name, and trade dress while purchasing pharmaceutical products or drugs. As a result, protecting a brand name or pharmaceutical name is becoming increasingly challenging, and evidence of secondary meaning or acquired distinctive character is being utilized to determine distinctiveness.
Trademark Infringement In The Pharmaceutical Sector in India
Section 13 of the Trade Marks Act, 1999, states that a trademark cannot be any name of chemical elements, compounds, or International Nonproprietary Names (INNs) declared by the World Health Organization and notified by the Registrar of Trademarks in 2012, or which are deceptively similar to the INNs. No pharmaceutical company may claim exclusive rights to the INNs listed because they are generic names for active medical substances. Anyone can use them.
There are a few instances of trademarks that are confusingly similar: “Trivedon” and “Flavedon” were said to be dissimilar. This followed a case in which the brand names “Mexate” and “Zexate” were deemed to be distinct despite the fact that they were rhyming words. In the case of Astrazeneca UK Ltd. v. Orchid Chemicals & Pharmaceuticals Ltd., 2006 SCC OnLine Del 1668 (which was later affirmed by the Division Bench in Astrazeneca UK Ltd. v. Orchid Chemicals & Pharmaceuticals Ltd., 2007 SCC OnLine Del 237), the Delhi High Court held that the two marks derived the prefix “Mero” from the drug “Meropenem” and that there was no similarity between them.
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– You could see Procedure of Trademark in India here.
– You could visit here to see Required documents of filing trademark in India.
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