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Price Difference of Medicinal Products

In Pharmaceutical Industry it is a normal tendency amongst the manufacturers to keep the name of a product based on the active compound of the medicine.

One issue is there, whether a party can be allowed to claim exclusive right over such a pharmaceutical brand , which is based on one of the active ingredient of the medicine?

Another important issue was that in those cases, where medicinal products are sold under the prescription of doctors, can it be said that there could be possibility of confusion and deception because of use of similar brand by other parties?

And there was another important aspect regarding effect of price difference in the possibility of confusion and deception. What would be impact of price difference of competing medicine?

Or in another words , if there is significant price different between the competing products of parties, can still be said that there could be possibility of confusion and deception?

These were the issues, which were addressed by the Hon'ble High Court of Delhi in its recent Judgement dated 26.08.2022 passed in Appeal bearing FAO(Comm)No 96 of 2022 titled as H.J.

Sun Pharma Laboratories Pvt. Ltd. Vs Hetero Healthcare Ltd.
This appeal before the Hob'ble Division Bench was filed by the Appellant against the order of Hon'ble Single Judge in a Suit filed by the Appellant against the Respondent where in Appellant's Interim Injunction application under Order 39 Rule 1 and 2 CPC was dismissed.
The Appellant filed the subject matter suit seeking the relief of inter alia infringement for its registered Trademark LETEROZ and also the passing off.

The subject matter suit was filed by the Appellant against use of trademark LETERO by the Respondent , which according to the Appellant, was deceptively similar to Appellant's Trademark LETEROZ.

When Respondent appeared in the subject matter Suit, the same took various defences. One of such defence of the Respondent was that the word LETROZ is derived from the word 'LETROZOLE'.

According to the Respondent, Word LETROZOL is an international non-proprietary name (INN) of a salt used in the medicine. Hence , the Respondent pleaded that , therefore, the Appellant cannot claim monopoly in use of the said word.

Price difference of the subject matter products and the subject madicine being prescribed by the oncologist, were another important factors, which according to the Respondent reduces the possibility of any confusion.

The Hon'ble Division Bench High Court of Delhi was pleased to dismiss the Appeal and decided all the afore mentioned issues in favour of Respondent.

According to the Hon'ble Division Bench, The appellant, in the present case, cannot be allowed to monopolize the word INN 'LETROZOLE' as the same was name of active salt used in the subject matter medicine.

There by it can be said that the name of brands , which are based on one of the active compound , are considered as weak trade mark.

Another observation of the Hon'ble Division Bench was that the mark, 'LETROZ', was not similar to the trademark 'LETERO'.

The Court said that merely because both the parties have adopted the initial letters of active salt 'LETROZOLE', it can not be said that competing Trademarks are similar.

According the Hon'bke Division Bench, as It was apparent that both the Appellant and the Respondent were using their marks, which are derived from the INN 'LETROZOLE', the possibility of confusion was least.

The Hon'ble High Court of Delhi also observed that there is also a marked difference in the price of both the products being sold by the Appellant and the Respondent.

The price of the Appellant's subject matter medidine was rup 187.80/- while Respondent was selling its medicinal product at the rate of Rup 60/-.

This significant price difference was also another important factor, which according to the Hon'ble Division Bench, was sufficient enough to nullify the possibility of confusion.

Another reason for declining the Appeal was that the subject matter medicines were sold by Oncologist, the doctors treating disease like Cancer.

The oncologist is an expert doctor who prescribes the medicines for the treatment of breast cancer.

According to the Hon'ble Division Bench , an oncologist is not likely to get confused because the two drugs are being sold with a mark containing the same first three letters which are derived from the active salt of the medicine namely 'LETROZOLE.

These are the reasons, which made the Hon'ble Single Judge and later on the Hon'ble Division Bench, High Court of Delhi to decline relief to the Appellant , first in the suit and then in the Appeal.

Case Law Discussed:
Sun Pharma Laboratories Pvt. Ltd. Vs Hetero Healthcare Ltd.
FAO (Comm) 96/2022
Delhi High Court
Vibhu Bakhru+Amit Mahajan, H.J.
Dated: 26.08.2022

Written By:Ajay Amitabh Suman, IPR Advocate, Hon'ble High Court of Delhi
Email: [email protected], 9990389539

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