Delhi High Court: Jyoti Singh, J. granted ex-parte ad-interim injunction and remarked that stricter approach is required in cases of medicinal preparations and products since any confusion between the respective medicinal products is likely to have a disastrous effect on public health.
The facts of the case are such that the plaintiff Company is a world renowned pharmaceuticals and consumer healthcare company having Indian Subsidiary, Glaxo Laboratories (India) being one of the market leaders in many therapeutic areas and in preventive healthcare in India. Since the early 1960s, Plaintiff is selling medicinal and pharmaceutical preparations, including tablets and injections, bearing one or more of Plaintiff’s BETNESOL Marks in India treating a wide variety of diseases, including, but not limited to, allergies and inflammatory disorders. Plaintiff is the proprietor of a valid and subsisting registration for the marks BETNESOL and BETNOVATE respectively in Class 5. The defendant is a Company incorporated under the Companies Act, 1956, engaged in the manufacturing, marketing and sale of pharmaceutical and medicinal products, including, tablets and oral drops, bearing the marks BETNEZEN and BETNEZEN FORTE and injections bearing the marks BETNECOL and BETNEVIN. As per Plaintiff’s information, Defendant’s tablets, oral drops and injections bearing Defendant’s Mark contain the active ingredient, Betamethasone and are used for the treatment of allergies and inflammatory disorders.
The plaintiff sent a legal notice to the Defendant demanding that Defendant should cease any and all use of Defendant’s Marks as it solely belong to the plaintiff’s. No response was received but on the contrary, Defendant continues to use Defendant’s Marks openly and blatantly. Thus, the instant application was preferred by the Plaintiff under Order 39 Rules 1 and 2 read with Section 151 of the Code of Civil Procedure 1908 i.e. CPC for grant of an ex-parte ad-interim injunction.
Counsel for petitioner submitted that owing to long and continuous use of Plaintiff’s BETNESOL Marks, consumers in India associate the marks solely and exclusively with the Plaintiff and no one else.
It was averred that Plaintiff’s and Defendant’s Marks starts with the letter combination “BETNE”. Defendant has merely replaced the letter “S” with the letter “C” in Plaintiff’s BETNESOL Marks to form Defendant’s BETNECOL mark. Defendant has merely replaced the letter combinations “SOL” and “OVATE” in Plaintiff’s BETNESOL Marks and Plaintiff’s BETNOVATE Marks with the letter combination “VIN” and “ZEN” to form the Defendant’s BETNEVIN and BETNEZEN marks. Thus, the rival marks, when looked at in their entirety, are similar in appearance, sound, and structure creating chances of consumer confusion.
The Court relied on Cadila Health Care v. Cadila Pharmaceuticals, (2001) 5 SCC 73 and observed that a stricter approach is required in cases of medicinal preparations and products since any confusion between the respective medicinal products is likely to have a disastrous effect on public health. Therefore, there is no doubt that Defendant’s Marks are nearly identical/similar to Plaintiff’s Marks and are likely to cause confusion amongst the consuming public as to the source of the goods under the Defendant’s Marks.
The Court held “Plaintiff has made out a prima facie case for grant of an ex parte ad-interim injunction. Balance of convenience lies in favour of the Plaintiff and it is likely to suffer irreparable harm in case the injunction, as prayed for, is not granted.” [Glaxo Group Ltd. v. Zenlabs Ethica Ltd., 2022 SCC OnLine Del 1772, decided on 03-06-2022]
Appearances
For petitioner- Mr. Urfee Roomi, Mr. Parth and Mr. Vishesh Kumar
