Trademark| Tolerance Level Allowable For Confusion Among Consumers Is Very Low In Pharmaceutical Products: Delhi HC Grants Ex-Parte Injunction On Glaxo’s Plea
The Delhi High Court on a plea filed by Glaxo Group Limited against Precado Healthcare Private Limited in a Trademark related case has granted ex-parte injunction saying that the tolerance level allowable for confusion among consumers is very low in pharmaceutical products.
A suit was filed by the plaintiff i.e., Glaxo seeking protection of the packaging/trade dress of its well-known product name ‘AUGMENTIN’ used for pharmaceutical and medicinal preparations. Glaxo is one of the leading pharmaceutical companies in the world which has a large number of well-known brands as part of its bouquet.
A Single Bench of Justice Prathiba M. Singh held, “Considering the fact that the Plaintiff’s product ‘AUGMENTIN’ is used both in rural and urban areas, the difference in the word mark ‘AUGMENTIN’ and ‘AMOXYDUO’ is insufficient to distinguish, due to the near identity in packaging. Moreover, there is a reasonable possibility of even chemists dispensing the Defendants’ products as a replacement or a similar product with that of the Plaintiff. … It is well recognised and even judicially settled that in the case of pharmaceutical products, confusion is to be avoided at all costs. … the level of tolerance allowable for confusion among consumers is very low in pharmaceutical products, and cannot be easily condoned.”
The Bench said that when the products of the plaintiff and the defendants are stacked together, it would be difficult to distinguish between the two products.
Advocates Tanya Varma and Vardan Anand appeared on behalf of the plaintiff while none appeared on behalf of the defendants.
Facts of the Case -
The plaintiff averred that it provided various pharmaceutical products in India, including AUGMENTIN, CALPOL, COBADEX CZS, NEOSPORIN, CEFTUM, SUPACEF, ELTROXIN, BETNOVATE, and T-BACT. Their manufacturing unit was located in Nashik, Maharashtra, spread over 47 acres dealing in tablets, creams, and ointments. One of the most popular products of the plaintiff was the product under the mark ‘AUGMENTIN’ which was launched in 1982 in the U.K. which was a combination drug of Amoxycillin Potassium Clavulanate, and was sold in various doses. There were several variants of the ‘AUGMENTIN’ product including, AUGMENTIN DUO, AUGMENTIN DDS, AUGMENTIN ES, AUGMENTIN 625, AUMENTIN 625 DUO etc. The product under the mark ‘AUGMENTIN’ was stated to have been launched in India in 1994 and the mark ‘AUGMENTIN’ was registered as a word mark.
The packaging used by the plaintiff was a broad green and white colour scheme and the dispute relates to the imitative packaging launched by the defendant under the mark ‘AMOXYDUO 625’. The defendant was engaged in marketing and selling of products manufactured under the impugned imitative packaging and it was averred that in December 2022, the plaintiff discovered the defendant’s product, AMOXYDUO-625, on its website. The defendant’s products were also listed on the B2B website www.indiamart.com. The plaintiff sent a legal notice to the defendant regarding the unauthorized use of the green and white packaging associated with the plaintiff's AUGMENTIN trademark and despite sending a follow-up letter, the plaintiff received no response.
The High Court in the above context of the case observed, “While the Defendants’ mark ‘AMOXYDUO’ differs from the Plaintiff’s mark, the manner in which the packaging has been created, with the same green & white combination, and green red & white combination for writing of the mark shows that the same has been made deliberately to come as close to the Plaintiff’s ‘AUGMENTIN’ packaging.”
The Court said that the plaintiff has made out a prima facie case for grant of an ex-parte injunction and the balance of convenience also lies in favour of the plaintiff, further, if the injunction order is not granted, irreparable harm would be caused to the plaintiff.
“… considering that the Defendants’ product is a colourable imitation of the Plaintiff’s trade dress and packaging, an ex-parte injunction is granted restraining the Defendant Nos. 1 and 2- Precado Healthcare Pvt. Ltd. and GG Nutritions, from using the manufacturing, selling, offering for sale, advertising any pharmaceutical preparations in the impugned green and white packaging or any other packaging which is a colourable reproduction or a substantial imitation of the packaging of Plaintiff’s product under the mark/name ‘AUGMENTIN’.”, further said the Court.
The Court also clarified that the defendants are not injuncted from using the mark ‘AMOXYDUO’, so long as the same is in sold/manufactured in a packaging which is not confused with or imitative of the Plaintiff’s product packaging.
Accordingly, the High Court directed that there shall be compliance of Order XXXIX Rule 3 CPC within a week.
Cause Title- Glaxo Group Limited v. Precado Healthcare Private Limited and Anr.
