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Requirement Of Medicines For A National Medical Emergency Is Not A Defence To Infringement

In the matter of Sun Pharmaceutical Industries Ltd. v. Cipla Limited [O.A.Nos.281, 282 and 283 of 2021], a single judge (C. Saravanan, J.) of the High Court of Judicature at Madras vide an order dated May 26, 2021, allowing a permanent injunction has held prima facie that 'requirement of medicines for a national medical emergency is not a defense to infringement.'

The suit claims that the marks 'Budefex Respules' and 'Duoz Respules' are deceptively similar to the plaintiff's marks 'Budecort Respules' and 'Duolin Respules' and therefore an infringement of the plaintiff's Intellectual Property rights. The plaintiffs asserted that the word 'Respules' is a coined word that has been registered and been in use since 2013.
Section 2 (1) (h) of the Trademarks Act, 1999 defines deceptively similar.

A mark shall be deemed to be deceptively similar to another mark if it so nearly resembles that other mark as to be likely to deceive or cause confusion. Considering the provision applicable to the case, the court admonished the defendants to alter the trade dress, layout color combination, design and artistic work and also the words deceptively similar to that of the plaintiff's trademark.

The defendants pleaded that the stock of already manufactured medicines under the infringed marks be allowed to sell as they are required for treatment of patients with Covid symptom. Whereas, the counsel for plaintiffs submitted that allowance to the defendants to sell their product with the offensive trademark, would dilute the plaintiffs intellectual property rights.

The Court asserting its earlier interim order of injunction on the case opined that:
it cannot allow a party to violate another persons' intellectual property rights and remain a mute spectator specially where there also is an attempt to pass-off the goods notwithstanding the fact that the country is facing unprecedented medical emergency and that possibly the patients suffering from Covid systems may require the drugs for treatment of respiratory ailments during these tough times (J. C. Saravanan, 2021).

It was propounded that the respective label and the trade dress adopted by the plaintiff as has been copied by the defendant is prima facie derivative imitation of the plaintiff's label wrapper with the intention to take advantage of the unprecedented demand in the market for these medicines; therefore, dismissing the defendants plea for vacating the earlier interim orders granted by the court on 30.4.2021 in O.A.Nos.281, 282 and 283 of 2021 in this matter.

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