The pharmaceutical sector has been growing significantly over recent years. The industry dominates the economy, so its repercussions would influence all areas, particularly intellectual property. Given the ongoing innovations in this field, the pharmaceutical sector is among the leaders in trademark registrations worldwide. Trademarks play a crucial role in the pharmaceutical sector due to their effect on a patient's health and safety by preventing name-related medical errors and as a marketing tool. Any potential for error in a drug's nomenclature, such as names with similar sounds or appearances, packaging that looks similar, etc., can influence a patient's decision to buy, and choosing the wrong medicine could have grave consequences. As a result, courts are strict in this regard and exercise particular caution when deciding cases involving pharma, placing the highest priority on the welfare and health of the general people.
The therapeutic efficacy of generic medications is not guaranteed by the Indian drug regulatory framework. Indian legislation a few years ago did not call for bioequivalence testing, which resulted in the medicinal efficacy of generic replacements being variable. This made doctors trust particular brands through experimenting, and it also caused considerable pricing disparities across generic medications that contain the same chemicals.
The courts take into account even slight chances of confusion or deception brought on by the use of confusingly similar marks, and they base their decisions on the idea that the average person with average intelligence and poor memory is not going to split up the names and analyze their meanings before making a purchase. Instead, he will rely on his memory or what he has heard about the product.[i] Public interest necessitates that the use of phonetic spellings be prohibited if there is even the slightest chance of confusion. The court determined that the public interest supports a lower standard of proof demonstrating confusing likeness.
The Delhi High Court recently ruled that the trademarks "Letroz" and "Letero”[ii] both of which are used for medications intended to treat a serious condition like breast cancer, were not misleadingly or confusingly similar. The court cited a prior Delhi High Court ruling (division bench) that found that the two drugs used to treat brain tumors, "Temodal" and "Temokem”,[iii] were not misleadingly similar. These two decisions arose from appeals of the denial of interim injunctions. The fact that these substances were prescription medications sold and given by trained and specialized doctors and pharmacists was relied upon by the courts. Again, the Supreme Court issued a warning against relying on such facts, noting that even doctors and pharmacists sometimes become confused by identical names.
Additionally, the courts avoided conducting a similarity analysis by relying on the fact that the active ingredient in both medicines was the same. These medications may be identical, but without proof, it's hard to see how anyone could come to that conclusion. Despite having the same active ingredients, generic medications differ in their therapeutic effects and are not necessarily interchangeable.
Furthermore, trademark lawsuits that are still in the preliminary stages may not be the best venue for the courts to address the issue of access to affordable medications. The strict standard set forth by the Supreme Court would justify an interim injunction at the interim stage when marks are similar (not identical but unquestionably similar); however, no evidence has been led supporting material facts, such as whether or not the products are truly the same, whether doctors are aware of price differences, whether doctors and pharmacists can be confused, etc.
The Supreme Court is the preeminent authority in a case[iv] on determining the similarity or identity of pharmaceutical trademarks, and it has decisively established the idea that less evidence is preferred to demonstrate confusion about medicinal products that are important to the public. The Court stressed the need for better standards in cases involving pharmaceutical items and noted that mixing different medicines can be fatal. The Court also stated the crucial points in this regard that there should be obvious indicators for differentiating medicinal items because although doctors and pharmacists are skilled individuals, they are not infallible and doctors are subject to a great deal of social pressure.
Also, the buyers of goods might not speak English or even the language used in the trademark, and small changes in word spellings could result in identical phonetic results. The Court further stated that the applicant should be required to provide an official search report from the Trade Mark office relevant to the trademark in question so that the drug authority can draw the appropriate conclusions.
In one of the cases[v], the Delhi High Court used the doctrine of the likelihood of confusion based on the misleading similarity between the "Bectodine - M" and "Betadine" marks, trade dress, and packaging, as well as the similarity of color scheme, get-up, and layout. The Court has also noted that even though drugs are used to treat the same condition, this does not rule out the possibility of side effects, and in a recent case, while stressing that marks must be compared overall, has noted that even though the marks are used on products intended to treat different conditions and the ways in which products are administered are noticeably different, drugs may be sold through common channels and the consumer base is also to be considered.
The trademark area for pharmaceuticals will have the most distinctive and one-of-a-kind marks. To differentiate their products from other items, makers of generic pharmaceuticals don't try to come up with distinctive names for their products. Manufacturers of generic medications frequently choose names that are a close match to the names of the active substances they utilize in their goods. There are a lot of comparable trademarks on the market when several producers start adopting the same name strategies.
When making decisions in matters involving pharmaceutical products, the courts should consider a wider range of issues, including medical abbreviations, the use of handwritten or oral prescriptions, whether the drug in question is accessible over the counter or only by prescription, and other issues. In conclusion, Indian courts are adopting a harsher methodology to determine the likelihood of confusion in pharmaceutical trademarks due to their impact on human life.
[i] Amritdhara Pharmacy vs. Satyadeo Gupta, AIR 1963 SC 449
[ii] Sun Pharmaceutical Laboratories vs Hetero Healthcare Ltd. & Anr. (CM APPL. 29651/2022, CM APPL. 29652/2022 & CM APPL. 29653/2022)
[iii] Schering Corporation & Ors. vs Alkem Laboratories Ltd., 2009 (165) DLT 474, 2010 (42) PTC 772 (Del)
[iv] Cadila Health Care Ltd vs. Cadila Pharmaceuticals Ltd., 2001(5) SCC 73
[v] Win-Medicare Pvt Ltd vs. Galpha Laboratories Limited, 2016 (65) PTC 506 (Del)