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Macleods Pharma gets favourable order from Delhi High Court on trademark dispute

Gireesh Babu, New Delhi
Friday, January 27, 2023, 08:00 Hrs  [IST]

The Delhi High Court has confirmed its earlier order for an ad interim interlocutory injunction in favour of Mumbai-based Macleods Pharmaceuticals, restraining its competitor Navi-Mumbai-based Areen Healthcare Pvt Ltd from manufacturing and selling a herbal supplement for alleged trademark infringement.

The Court had earlier issued an interim order in April, 2022, in favour of Macleods Pharmaceuticals and the company prayed for confirmation of the order while Areen Healthcare requested the Court for vacation of the order.

The dispute is related to Macleods' drug Setfrac, which is a herbal drug comprising Cissus Quadrangularis, intended for healing bones and providing respite from pain and inflammation resulting from weakening of bones. The company sells the drug both as Setfrac and Setfrac Plus.

The company alleged that in November, 2021, it came to learn that Areen Healthcare was also manufacturing and selling combination capsules containing Cissus Quadrangularis and Moringa Oleifera tablets as drugs providing comprehensive support for joints, under the trademark Safefrac and Safefrac Plus.

The Counsel appeared for Macleods argued that the classical triple identity test are fully satisfied in this case, as - the grade names are phonetically nearly identical, the marks are used for identical pharmaceutical products which treat the same ailments, and the products bearing the marks are available through the same trade channels and cater to the same class of consumers, namely patients suffering from bone and joint inflammatory diseases.

The company also claimed priority of users, as it has been using the trademarks since 2013, while Areen Healthcare had claimed user only from July 10, 2015.

The Counsel appearing for Areen Healthcare argued that the suit is highly belated and that the prayer for interlocutory injunction deserves to be dismissed even on the ground of delay. Both the parties had been participating in exhibitions in which both their products were exhibited and sold and that, despite having been aware of Areen's product, Macleods chose to file the suit years later, argued the Counsel.

Analysing the arguments, Justice C Hari Shankar in the order observed that mere delay is not sufficient to disentitle a plaintiff, whose trademark is infringed, from interlocutory relief.

Macleods placed documents including invoices dating back to 2013 and manufacturing license in 2012 for Setfrac drug along with other documents and none of these documents have been doubted or discredited by Areen Healthcare. The Court also noted that Areen's mark is unregistered as yet, whereas Macleods has a registered trademark in its favour. The Court agreed that the triple identity test stands satisfied in the matter.

"In these circumstances, a prima facie case of infringement is made out in favour of the plaintiff (Macleods Pharma) and against the defendants (Areen Healthcare)," said the Order. If an interlocutory injunction as sought is not granted, the infringing product would be further released in the market, which would irreparably injure the plaintiff’s intellectual property rights, it added.

"In the circumstances, the ad interim interlocutory order passed by this Court on 13th April 2022 is made absolute pending disposal of the suit," said the Order.

The Judge added that the order is only intended to express a prima facie view to the extent necessary for disposing of the applications and the observations in this order shall not influence the court at the time when the suit is heard.


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