2 October, 2918
This is pertaining to a suit filed by Glenmark Pharmaceuticals Limited ("the Plaintiff") against Curetech Skincare ("the Defendant No. 1) and Galpha Laboratories Limited ("the Defendant No. 2") (collectively "the Defendants") in the High Court of Mumbai for retraining the Defendants to use the mark "CLODID" in relation to the products of the Defendant No. 2. The Court noted that the Defendant No.2 has copied the word mark, the artwork, colour scheme, front style, manner of writing, trade dress of the Plaintiff's products CANDID. The Defendant No. 1 is the contract manufacturer of the products of the Defendant No. 2 and they claimed that they didn't have any right in relation to the trade mark/label CLODID.
The Defendant No. 2 informed the Court their unwillingness to contest the suit and stated their willingness to submit to a decree. The Defendant No. 2 mentioned in the Court that they have inadvertently copied the trade mark/label of the Plaintiff and that they have earned approximately Rs. 2.92 crore by selling the goods bearing the mark "CLODID". The Defendant No. 2 also stated their willingness to submit to a decree and resolve the dispute. The Plaintiff pointed out to the Court that the Defendant No. 2 is a habitual offender and there has been numerous infringement cases flled against the Defendant No. 2 by various organizations and therefore the Defendant No. 2 should not be allowed to go scot free. It was also mentioned in the Court by the Plaintiff that the Central Drugs Standard Control Organization in the past found the products of Defendant No. 2 as "not of standard quality/spurious/adulterated/misbranded" and the Plaintiff also submitted documents in support of their contention. The Court after observing the facts and circumstances of the case stated that the present case is the perfect example where "the corporate and financial goals of such companies cloud the decision of its executives whose decisions are incentivised by profits, more often than not, at the cost of public health". The Court also mentioned that "drugs are not sweets.
Pharmaceuticals companies which provide medicines for health of the consumer have a special duty of care towards them. These Companies, in fact, have a greater responsibility towards the general public". The Court states that usually the Courts are lenient toward the defendants who show their willingness to settle the matter and the Courts usually allow such defendants to settle the matter with or without cost. However, in this instant case, the Court found the Defendant No. 2 as not only dishonest but also audacious which display no regards to the authority/rule of law.
The Court after examining various relevant aspects found that the Defendant No. 2 is not only indulging in infringing activities but also repeatedly copying brands of the other companies and also appear to be in complete violation of the FDA regulations from time to time. The Court was of the opinion that the Defendant No. 2 didn't deserve any leniency due to their habitual infringing attitude; however, on the assurance of the Defendant No. 2, the Court decided to impose a cost of Rs. 1. 50 crores. The Plaintiff prayed to the Court that the cost of R. 1.50 crore be paid directly to the Kerala relief fund by the Defendant No.2. The Court vide its order dated 28th August, 2018, directed the Defendant No. 2 to pay Rs.
1.50 crore towards the Kerala Flood relief fund and forthwith withdraw all the products bearing the mark "CLODID" and its variants from the market and destroy the same. The Court also directed the Defendant No. 2 to strictly abide by the rules and regulations of the FDA.
For further information, please contact:
Vineet Aneja, Partner, Clasis Law
vineet.aneja@clasislaw.com
