17 January, 2019
Four Medical Devices brought under Regulatory Purview
By way of a notification dated December 3, 2018, the Ministry of Health and Family Welfare (‘MHFW’) has brought four commonly used medical devices (i.e. nebulizers, blood pressure monitoring devices, digital thermometers and glucometers) under the purview of ‘drugs’, as defined under Section 3(b)(iv) of the Drugs and Cosmetics Act, 1940 (‘DCA’), with effect from January 1, 2020. These are an addition to the pre-existing list of 23 other medical devices, already defined as ‘drugs’ under the DCA.
Passing-off and Design Infringement can be tried together in a Composite Suit
In the matter of Carlsberg Breweries v. Som Distilleries and Breweries,2 the special bench of the Delhi High Court has, in its order dated December 14, 2018, held that the joinder of two separate causes of action, one for infringement of a registered design and the other for passing-off is permissible and can be tried together in a composite suit. The plaintiffs in this suit alleged both infringement of a registered design as well as passing-off of the plaintiff ’s trade dress in respect of the bottle and overall get up of its ‘Carlsberg’ mark. The defendants, in response, raised the threshold objection that such a composite suit was not maintainable in view of the judgment of the full bench (three judges) of the Delhi High Court in the matter of Mohan Lal v. Sona Paint3 The Single Judge hearing this matter was of the opinion that the decision in Mohan Lal required a second look and based on the Chief Justice’s instructions, the present Special Bench (five judges) was constituted.
The majority in the Mohan Lal case had held that two separate suits would have to be filed for actions arising out of the infringement of a registered design and passing-off. The Court in the Mohan Lal case had however clarified that if such actions are filed at the same time, or in close proximity, they may be tried together as there may be some aspects which may be common.
The special bench of the Delhi High Court overruled the decision of the full bench of the Delhi High Court, inter alia on the ground that the full bench overlooked provisions of Order II Rule 3 of the Code of Civil Procedure, 1908, which permits joinder of multiple causes of action. The special bench further observed that the cause of action of passing-off and that of design infringement, in the instant case, emanated from the same transaction and therefore it was inconceivable for the cause of action to be ‘split’ in some manner and presented in different suits. Therefore, the Special Bench held that to avoid multiplicity of proceedings, on account of common questions of law and fact, a joinder of such causes of action would be permissible.
Draft Cosmetics Rules, 2018
MHFW has, on November 29, 2018, published the Draft Cosmetics Rules, 2018 under the DCA. The draft rules aim to expand the regulations surrounding import, manufacturing, labelling, and other related activities in relation to ‘cosmetics’ as defined in Clause (aaa) of Section 3 of the DCA. The draft rules also introduce certain stringent norms with an aim to make manufacturers and importers of cosmetics more accountable for the safety of the cosmetics sold in the country. Some of the key salient features of the draft rules pertain to quality standard, labeling, prohibited cosmetics, import registration and enforcement authorities.
For further information, please contact:
Zia Mody, Partner, AZB & Partners
zia.mody@azbpartners.com
2 CS(OS) 1485/2015.
3 Mohan Lal v. Sona Paint, 2013 (55) PTC 61 (Del) (FB).
