Tm & consumer protection

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Tm & consumer protection

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Tm & consumer protection

  1. 1. CHENNAI 3rd Floor, ‘Creative Enclave’, 148-150, Luz Church Road, Mylapore, Chennai - 600 004. Tel: +91 - 44 - 2498 4821 BANGALORE Suite 920, Level 9, Raheja Towers, 26-27, M G Road, Bangalore - 560 001. Tel: +91 - 80 - 6546 2400 COIMBATORE #1533, Trichy Road, Coimbatore, India – 641018. Tel: +91 - 422 – 6552921 EMAIL info@altacit.com WEBSITE www.altacit.com PHARMACEUTICAL TRADEMARK AND CONSUMER PROTECTION (Critical analysis on pharmaceutical trademark protection in the view of unwary consumers…) R.PRIYANKAA, SCHOOL OF EXCELLENCE IN LAW, CHENNAI, INTERN
  2. 2. CHENNAI 3rd Floor, ‘Creative Enclave’, 148-150, Luz Church Road, Mylapore, Chennai - 600 004. Tel: +91 - 44 - 2498 4821 BANGALORE Suite 920, Level 9, Raheja Towers, 26-27, M G Road, Bangalore - 560 001. Tel: +91 - 80 - 6546 2400 COIMBATORE #1533, Trichy Road, Coimbatore, India – 641018. Tel: +91 - 422 – 6552921 EMAIL info@altacit.com WEBSITE www.altacit.com Pharmaceutical Trademark • Trademark Act, 1999 governs the registration of Trademark and pharmaceutical products under class 05. • Generic names cannot be registered. • Section 13(b) specially prohibits commonly used names, chemical element or compound or words • The Trademark Act prohibits the registration of commonly used names and descriptive names that suggest quality of a product under provisions of section 09. • Generic drugs are not protected under this act.
  3. 3. CHENNAI 3rd Floor, ‘Creative Enclave’, 148-150, Luz Church Road, Mylapore, Chennai - 600 004. Tel: +91 - 44 - 2498 4821 BANGALORE Suite 920, Level 9, Raheja Towers, 26-27, M G Road, Bangalore - 560 001. Tel: +91 - 80 - 6546 2400 COIMBATORE #1533, Trichy Road, Coimbatore, India – 641018. Tel: +91 - 422 – 6552921 EMAIL info@altacit.com WEBSITE www.altacit.com What can be Protected? Eligible for Registration Not Eligible for Registration The Pharmaceutical brand should be capable of being represented graphically. Brands which hurts religious sentiments. Capable of distinguishing the products of one from those of the others Scandalous and obscene matters Brand must be used in relation to the pharmaceutical products Causes deception and confusion. Indicating a connection with the pharmaceutical products. Prohibited under Emblems and Names Act, 1950.
  4. 4. CHENNAI 3rd Floor, ‘Creative Enclave’, 148-150, Luz Church Road, Mylapore, Chennai - 600 004. Tel: +91 - 44 - 2498 4821 BANGALORE Suite 920, Level 9, Raheja Towers, 26-27, M G Road, Bangalore - 560 001. Tel: +91 - 80 - 6546 2400 COIMBATORE #1533, Trichy Road, Coimbatore, India – 641018. Tel: +91 - 422 – 6552921 EMAIL info@altacit.com WEBSITE www.altacit.com Protection of owners:- • As per statute registered proprietor has exclusive right to use and right against infringement • Trademark distinguishes product and creates unique identity • Creates reputation • Creates Brand popularity and helps in business expansion • Trademarks can work effectively across borders, cultures, and languages. • Trademarks are usually the only business asset you have that can appreciate in value over time.
  5. 5. CHENNAI 3rd Floor, ‘Creative Enclave’, 148-150, Luz Church Road, Mylapore, Chennai - 600 004. Tel: +91 - 44 - 2498 4821 BANGALORE Suite 920, Level 9, Raheja Towers, 26-27, M G Road, Bangalore - 560 001. Tel: +91 - 80 - 6546 2400 COIMBATORE #1533, Trichy Road, Coimbatore, India – 641018. Tel: +91 - 422 – 6552921 EMAIL info@altacit.com WEBSITE www.altacit.com Protection to consumers: • It helps consumers to distinguish the product. • Creates awareness of brand and goodwill • Prevents consumers from deception as to source of goods and services • Trademarks provide consumer convenience by allowing consumers to identify (by word, logo, slogan, package design, or other indicators of origin) which product or service they would like to purchase or to avoid purchasing. • It helps consumers in getting quality products • Trademarks provide consumer convenience by allowing consumers to base their purchasing decisions on what they have • heard, read, or experienced themselves.
  6. 6. CHENNAI 3rd Floor, ‘Creative Enclave’, 148-150, Luz Church Road, Mylapore, Chennai - 600 004. Tel: +91 - 44 - 2498 4821 BANGALORE Suite 920, Level 9, Raheja Towers, 26-27, M G Road, Bangalore - 560 001. Tel: +91 - 80 - 6546 2400 COIMBATORE #1533, Trichy Road, Coimbatore, India – 641018. Tel: +91 - 422 – 6552921 EMAIL info@altacit.com WEBSITE www.altacit.com Consumers in pharmaceutical sector • consumers have limited veto power over the choice and price of prescriptions, they nevertheless have strong views on the industry, its products and expectations for a positive customer experience. • There was not much awareness on the visual representation of a medicine as companies tend to change the appearance quite often. • Usually patients rely on the name of the medicine irrespective of the shape, colour and appearance. • Consumer usually pays attention for the purpose of the medicine to which it cures.
  7. 7. CHENNAI 3rd Floor, ‘Creative Enclave’, 148-150, Luz Church Road, Mylapore, Chennai - 600 004. Tel: +91 - 44 - 2498 4821 BANGALORE Suite 920, Level 9, Raheja Towers, 26-27, M G Road, Bangalore - 560 001. Tel: +91 - 80 - 6546 2400 COIMBATORE #1533, Trichy Road, Coimbatore, India – 641018. Tel: +91 - 422 – 6552921 EMAIL info@altacit.com WEBSITE www.altacit.com Change of appearance of Drugs
  8. 8. CHENNAI 3rd Floor, ‘Creative Enclave’, 148-150, Luz Church Road, Mylapore, Chennai - 600 004. Tel: +91 - 44 - 2498 4821 BANGALORE Suite 920, Level 9, Raheja Towers, 26-27, M G Road, Bangalore - 560 001. Tel: +91 - 80 - 6546 2400 COIMBATORE #1533, Trichy Road, Coimbatore, India – 641018. Tel: +91 - 422 – 6552921 EMAIL info@altacit.com WEBSITE www.altacit.com Trademarks to pharmaceutical products: • Pharmaceutical products are registered under class 05 and are governed by Trademark Act, 1999. • It prohibits generic and descriptive names • Consumer in pharmaceutical sector purchases product based on the name also if prescribed and the purpose. • They usually get deceived by similar tablets available in the market and get side effects.
  9. 9. CHENNAI 3rd Floor, ‘Creative Enclave’, 148-150, Luz Church Road, Mylapore, Chennai - 600 004. Tel: +91 - 44 - 2498 4821 BANGALORE Suite 920, Level 9, Raheja Towers, 26-27, M G Road, Bangalore - 560 001. Tel: +91 - 80 - 6546 2400 COIMBATORE #1533, Trichy Road, Coimbatore, India – 641018. Tel: +91 - 422 – 6552921 EMAIL info@altacit.com WEBSITE www.altacit.com How Similar products obtained Trademarks? In a case, Indchemie Health Specialists Pvt. Ltd. V. Intas Pharmaceuticals. Plaintiff Pharmaceuticals preparation CHERI capsules, syrup, etc.. Direction of physician To cure Iron deficiency Medicinal preparation Pleaded that both are deceptively similar and serves the same purpose Defendant Dietary supply CHERRY syrup Direction of dietician Iron deficiency Dietary supplement Defendant contended that both are not similar as his product is a mere dietary supplement.
  10. 10. CHENNAI 3rd Floor, ‘Creative Enclave’, 148-150, Luz Church Road, Mylapore, Chennai - 600 004. Tel: +91 - 44 - 2498 4821 BANGALORE Suite 920, Level 9, Raheja Towers, 26-27, M G Road, Bangalore - 560 001. Tel: +91 - 80 - 6546 2400 COIMBATORE #1533, Trichy Road, Coimbatore, India – 641018. Tel: +91 - 422 – 6552921 EMAIL info@altacit.com WEBSITE www.altacit.com • Court held that since the plaintiff’s product is a pharmaceutical product it has to be consumed with the direction of the physician whereas defendants product can be consumed with the advice of a dietician which makes difference between them. • Here it has also been quoted that the plaintiff’s products are covered under Drugs and Cosmetics Act, 1940 whereas Defendants products are covered under Food and safety act. • Therefore allowed the defendants to use his registered name despite of both serving the same Iron deficiency.
  11. 11. CHENNAI 3rd Floor, ‘Creative Enclave’, 148-150, Luz Church Road, Mylapore, Chennai - 600 004. Tel: +91 - 44 - 2498 4821 BANGALORE Suite 920, Level 9, Raheja Towers, 26-27, M G Road, Bangalore - 560 001. Tel: +91 - 80 - 6546 2400 COIMBATORE #1533, Trichy Road, Coimbatore, India – 641018. Tel: +91 - 422 – 6552921 EMAIL info@altacit.com WEBSITE www.altacit.com • Similarly, in Ranbaxy Laboratories Limited V.Indchemie Health Specialists pvt. Ltd. Plaintiff Registered user of “Zanocin” Generic name: offoxacin Anti-bacterial purpose Found defendants product to be deceptively similar and claimed for injunction. Defendant Registered “Zenoxim” Generic name: Cefuroxime Anti-biotic purpose Pleaded that their generic names are different and they serve different purposes.
  12. 12. CHENNAI 3rd Floor, ‘Creative Enclave’, 148-150, Luz Church Road, Mylapore, Chennai - 600 004. Tel: +91 - 44 - 2498 4821 BANGALORE Suite 920, Level 9, Raheja Towers, 26-27, M G Road, Bangalore - 560 001. Tel: +91 - 80 - 6546 2400 COIMBATORE #1533, Trichy Road, Coimbatore, India – 641018. Tel: +91 - 422 – 6552921 EMAIL info@altacit.com WEBSITE www.altacit.com Court held that since their generic names are different Offoxacin and cefuroxime their origin is said to be different. They both serve different purposes one as anti- bacterial and another as anti-biotic Therefore held since their origin and purpose is not common they do not cause confusion or deception in the minds of the consumers and allowed the usage.
  13. 13. CHENNAI 3rd Floor, ‘Creative Enclave’, 148-150, Luz Church Road, Mylapore, Chennai - 600 004. Tel: +91 - 44 - 2498 4821 BANGALORE Suite 920, Level 9, Raheja Towers, 26-27, M G Road, Bangalore - 560 001. Tel: +91 - 80 - 6546 2400 COIMBATORE #1533, Trichy Road, Coimbatore, India – 641018. Tel: +91 - 422 – 6552921 EMAIL info@altacit.com WEBSITE www.altacit.com • In another case, Cadila Health Care ltd. V. Cadila Pharmaceuticals Ltd.: Appellant: 1) Registered name “Falcigo” 2) cures “Falcipharum”ie., cerebral malaria. 3)Contains Artesunate. 4)Claims for injunction on the basis of deceptive similarity Respondent: 1)Registered name “Falcitab” 2)Contains Mefloquine hydrochloride 3)Cures Falcipharum Malaria 4) Contended that the Falci was a common name of the disease and the words Go and Tab alone indicates the brands.
  14. 14. CHENNAI 3rd Floor, ‘Creative Enclave’, 148-150, Luz Church Road, Mylapore, Chennai - 600 004. Tel: +91 - 44 - 2498 4821 BANGALORE Suite 920, Level 9, Raheja Towers, 26-27, M G Road, Bangalore - 560 001. Tel: +91 - 80 - 6546 2400 COIMBATORE #1533, Trichy Road, Coimbatore, India – 641018. Tel: +91 - 422 – 6552921 EMAIL info@altacit.com WEBSITE www.altacit.com Court accepted the views of the respondents and further stated that both the products contains different ingredients and their generic names were also different and therefore allowed the usage.
  15. 15. CHENNAI 3rd Floor, ‘Creative Enclave’, 148-150, Luz Church Road, Mylapore, Chennai - 600 004. Tel: +91 - 44 - 2498 4821 BANGALORE Suite 920, Level 9, Raheja Towers, 26-27, M G Road, Bangalore - 560 001. Tel: +91 - 80 - 6546 2400 COIMBATORE #1533, Trichy Road, Coimbatore, India – 641018. Tel: +91 - 422 – 6552921 EMAIL info@altacit.com WEBSITE www.altacit.com Analysis of the cases:- • In the above cited cases the product names were registered though they were quite similar. • Court gave various reasons for accepting the names. • The given reasons were absolutely acceptable for a person who buys medicines with prescription • Nowadays people purchase medicines without prescription by mere usage of the name of the medicine. • Here comes the confusion
  16. 16. CHENNAI 3rd Floor, ‘Creative Enclave’, 148-150, Luz Church Road, Mylapore, Chennai - 600 004. Tel: +91 - 44 - 2498 4821 BANGALORE Suite 920, Level 9, Raheja Towers, 26-27, M G Road, Bangalore - 560 001. Tel: +91 - 80 - 6546 2400 COIMBATORE #1533, Trichy Road, Coimbatore, India – 641018. Tel: +91 - 422 – 6552921 EMAIL info@altacit.com WEBSITE www.altacit.com Possibility of confusion: • In the first case, court interpreted the difference between the dietician and a physician. • Layman couldn’t differentiate the dietician and physician while purchasing a product. • Also medical shops doesn’t always ask for prescription while selling the medicines. • This would cause deception in the minds of the consumer since their usage and names are similar. • Also not every consumer is aware of the Drugs and Cosmetics Act and Food and Safety Act.
  17. 17. CHENNAI 3rd Floor, ‘Creative Enclave’, 148-150, Luz Church Road, Mylapore, Chennai - 600 004. Tel: +91 - 44 - 2498 4821 BANGALORE Suite 920, Level 9, Raheja Towers, 26-27, M G Road, Bangalore - 560 001. Tel: +91 - 80 - 6546 2400 COIMBATORE #1533, Trichy Road, Coimbatore, India – 641018. Tel: +91 - 422 – 6552921 EMAIL info@altacit.com WEBSITE www.altacit.com • In the second case, the point of difference was: • Offoxacin and cefuroxime generic names,consumer is not a technical person so he might not be aware of it. • Then both anti-biotic and anti-bacterial serves the same purpose which is to kill bacteria. • So there are possibilities to get deception.
  18. 18. CHENNAI 3rd Floor, ‘Creative Enclave’, 148-150, Luz Church Road, Mylapore, Chennai - 600 004. Tel: +91 - 44 - 2498 4821 BANGALORE Suite 920, Level 9, Raheja Towers, 26-27, M G Road, Bangalore - 560 001. Tel: +91 - 80 - 6546 2400 COIMBATORE #1533, Trichy Road, Coimbatore, India – 641018. Tel: +91 - 422 – 6552921 EMAIL info@altacit.com WEBSITE www.altacit.com • In the third case the difference is regarding the suffixes Go and Tab. • In 2004 case, Ranbaxy Laboratories Ltd. V. Anand Prasad and 4 others, it was held that having the same suffix in the product name would cause confusion. • Applying of that case law here same prefix also causes confusion.
  19. 19. CHENNAI 3rd Floor, ‘Creative Enclave’, 148-150, Luz Church Road, Mylapore, Chennai - 600 004. Tel: +91 - 44 - 2498 4821 BANGALORE Suite 920, Level 9, Raheja Towers, 26-27, M G Road, Bangalore - 560 001. Tel: +91 - 80 - 6546 2400 COIMBATORE #1533, Trichy Road, Coimbatore, India – 641018. Tel: +91 - 422 – 6552921 EMAIL info@altacit.com WEBSITE www.altacit.com Deception and Confusion: • Consumers are not technical people to understand the generic names, composition, direction etc… they purchase medicines by the usage of names. So granting trademarks to phonetically similar products though with some variations would definitely mislead the consumers. These cases strikes the very object of the Trademark law.
  20. 20. CHENNAI 3rd Floor, ‘Creative Enclave’, 148-150, Luz Church Road, Mylapore, Chennai - 600 004. Tel: +91 - 44 - 2498 4821 BANGALORE Suite 920, Level 9, Raheja Towers, 26-27, M G Road, Bangalore - 560 001. Tel: +91 - 80 - 6546 2400 COIMBATORE #1533, Trichy Road, Coimbatore, India – 641018. Tel: +91 - 422 – 6552921 EMAIL info@altacit.com WEBSITE www.altacit.com Suggestion: • Registration of similar mark with slight alterations can be avoided. • Make different presence • Here the consumer can easily find out the brand name irrespective of the product name. • Strict evaluation.

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