In this case of trademark infringement, an exemplary amount of Rs. 1.5 crore was awarded by the Hon’ble Bombay High Court in favour of Glenmark Pharmaceuticals Ltd. (hereinafter referred to as ‘Glenmark’). Galpha Laboratories Ltd. (hereinafter referred to as Galpha) was found to be ‘habitual offender’ for trademark and copyright infringement. What makes this case interesting is, firstly the Galpha’s decision to not contend the suit and secondly the exemplary damages awarded by Hon’ble Bombay High Court. Brief Facts of the case are as follows:
- Galpha’s mark “CLODID-D” was alleged to be infringing packaging and trade dress of Glenmark’s mark “CANDID-B”. It was further alleged that Galpha has copied word mark, art-work, colour scheme, font style, manner of writing, trade dress of the Glenmark’s product “CANDID-B”.
- With regards to Curetech Skincare, the position was made clear that they were only the contract manufacturer of the product of Galpha. The copy of contract manufacturing agreement was also supplied by Curetech according to which art-work, labels and marks were provided by the Galpha, and they are not claiming any right over the disputed mark.
- The main dispute pertaining to infringement of trademark of Glenmark by Galpha was contended before the court.
Arguments
By Glenmark i.e., Plaintiff:
- That this is not the first time Galpha is infringing their trademarks, an earlier cease and desist notice was cited by Glenmark, wherein Galpha was asked to stop infringing upon the trademark of Glenmark, “ASCODIL”, by using deceptively similar mark “ASCORIL”, to which an unconditional apology and undertaking was provided by Galpha.
- That apart from copying Glenmark’s trademark, Galpha has copied marks of various other pharmaceutical companies for which suits are pending. Further in the case of Win-Medicare Pvt. Ltd. Vs. Galpha Laboratories Ltd. & Ors {2016 (65) PTC 506 (Del)}, Delhi High Court has observed that Galpha is a ‘habitual offender’.
- That apart from infringement, there are several other instances wherein medical products of Galpha were found to be “Not of standard quality/Spurious” by Central Drugs Standard Control Organization, various articles were cited wherein it was revealed that Galpha has violated standards set out by Food and Drug Administration (FDA).
- That on basis of such repeated infringement and violation of standards a stricter punishment has to be awarded upon Galpha to deter them from any such illicit acts in future
By Galpha i.e., Defendant:
- Galpha, surprisingly, admitted to all the allegations put forth by Glenmark and contented that they should have been more precautious and diligent before adopting and using the trademark and that they are willing to submit themselves to the decree of court.
Issue
Whether Galpha by use of mark “CLODID-B” is infringing upon mark of Glenmark, “CANDID-B”?
Judgement
The marks in dispute were presented before the court and the court took notice that the mark of Galpha, “COLDID-B” is nothing but a direct copy of mark of Glenmark, “CANDID-B”. It was observed by court that “Drugs are not sweets. Pharmaceutical companies which provide medicines for health of the consumers have a special duty of care towards them. These companies, in fact, have a greater responsibility towards the general public”. Strict approach was followed by Bombay High Court, and based on the evidences and documents produced by Glenmark, the court observed that there is no doubt that Galpha is a habitual offender with a set mode of operation of copying brands of other to make profits.
Further it was observed that Galpha has copied trade dress, colour scheme, art-work, font style and even manner of writing of Glenmark’s product, and keeping in mind the strictness to be followed in medical products; habitual disregard by Galpha to rights of others; and keeping public interest at priority, Hon’ble High Court of Bombay imposed Rs. 1,50,00,000/- as the exemplary costs on the Galpha.
Thus, by the documents and evidences produced before the court, it was observed that Galpha is not only a habitual infringer but also habitual offender of law, medicine being directly related to public health needs more scrutiny and hence, Galpha cannot escape its liability by pleading that they accept all the charges and submit themselves to the suit. They have to be responsible for their actions and Rs. 1.5 crore was awarded as an exemplary damage to deter Galpha from any infringement and violation in future. Court while passing such judgement relied not only on Trade Marks Act but also on general principle of law.
By: Dhruv Dangayach, Ramaiah College of Law
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