On January 3rd 2022, the Madras High Court dealt with issues based on the same premise in the case of Apex Laboratories v. Axis Life9. The pith of the case lies in the phonetic, visual and artistic similarities between the defendant’s product ZENKOVIT VS ZINCOVIT of the plantiff.
Recent trends in intellectual property disputes concerning pharmaceutical companies show that compared to other products, courts apply a stricter process to assess similarities concerning copyright or trademarks. Given the severity of the consequences, special attention is given to pharmaceutical names including the most minute details with little to no reliance given to the aspect of human recollection or memory of the consumers when determining the chances of confusion.
Needless to say, in a case where there is deliberate copyright infringement of a pharmaceutical product, there is no leniency in imposing penalties present in pharma guides and other modes which has generated tremendous amounts of goodwill and reputation in the market. The defendant company’s product “ZENKO-VIT” was prima facie considered to be infringing upon the rightful ownership of the product’s trademark and copyright as the trademark phonetically identical, and further, the packaging bore a close resemblance to ZINCOVIT. Therefore, the Court under Section 51 of the Copyright Act, 1957 and Section 29 of the Trademarks Act, 1999 held that they could:
Substantially state that the defendants were already aware of the products used by the defendants and deliberately chose to copy the plaintiff’s copyright in the artistic work.
This observation was followed by the grant of a permanent injunction in the plaintiff’s favour along with an order restraining the defendants from using the products under the name ‘ZENKO-VIT.’ In addition, the Court directed the defendants to surrender the documents bearing the impugned mark ‘ZENKO-VIT’ and pay a compensatory amount of INR 50,000 to the plaintiffs.