MUMBAI: In a recent judgment, the Bombay High Court emphasized that while physicians and pharmacists are generally knowledgeable in their field, they are not infallible, and when it comes to medicinal and pharmaceutical products, there can be no room for errors, as even a small mistake can prove fatal to consumers. The court made this observation while restraining Gleck Pharma (OPC) Pvt Ltd from using a trademark that it said was “deceptively similar” to Glenmark Pharmaceuticals Ltd’s trademark for an anti-diabetes drug.
Justice F P Pooniwalla, who heard the arguments, disposed of an interim trademark infringement plea filed by Glenmark. The company had filed a suit against Gleck’s trademark ‘Xigamet’, claiming that it was deceptively similar to its own trademark, Zita-met. Glenmark sought interim protection until the suit was decided. Gleck’s counsel Musharaff Baba opposed relief citing dissimilarities.
After hearing arguments from both sides, Justice Pooniwalla noted that the Delhi High Court had previously held that when examining the similarity and confusion between medicinal products, the perspective of an ordinary person of average intelligence should be considered, rather than that of a specialized medicinal practitioner. “Physicians, doctors, and chemists are not immune to confusion or mistake,” the court said, adding that consumers often place orders for prescription drugs over the phone and that handwritten prescriptions can be difficult to read, increasing the likelihood of confusion and deception.
The court acknowledged that at the molecular level, the medicines in question were very different from each other. However, Justice Pooniwalla agreed with Glenmark’s counsel, advocate Hiren Kamod, that the test to detect deceptive similarity must be strictly applied in this case. The judge stated, ” In my view, any confusion or deception between the drugs sold by the Plaintiff under the trademark ZITAMET containing the molecule sitagliptin and the Defendants’ goods bearing the trademark XIGAMET containing the molecule teneligliptin could potentially cause harmful side effects on the consumers and/or lead to other disastrous consequences. ”
After 2015, Glenmark said it changed the molecule of “ZITA-MET” from Sitagliptin to Teneligliptin and Metformin.
Baba submitted that the common usage of the suffix “met” is used industry-wide across the globe in medicines having the ingredient metformin. He further submitted that several medicines are being sold in the market with the suffix “met” “XIGAMET” uses a combination of Glimpredite and Metformin and hence the name, said Gleck adding it was a high-quality medicine hence public interest is secured.
The HC rejected Gleck’s argument that no confusion would arise between their goods and Glenmark’s because they are prescription medicines. The HC cited a Supreme Court ruling that highlighted how prescriptions have lost their significance in India, and Schedule-H drugs, which should only be sold with a prescription, are being sold over the counter without them. The HC said the mark is deceptively similar as claimed by Glenmark. “The ordinary common man of average intelligence who would go to buy medicines is definitely going to be confused between the two marks” observed the HC adding it was one more reason why the relief ought to be granted to Glenmark.