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The Delhi High Court passed an ex parte injunction in the matter of Glenmark Pharmaceuticals vs Sanjeevni Medicos And Or against the defendant and restrained them from manufacturing, marketing, selling, and advertising medicinal and pharmaceutical preparations under Glenmark’s trade mark – ‘TELMA’ and ‘TELMA-AM’ and any other mark deceptively similar to the same. The injunction was granted to prevent confusion or deception amounting to infringement or passing off of Glenmark’s trade mark registrations. Telma and Telma-AM are trademarked names for Glenmark’s medicinal preparations that contain Telmisartan and a combination of Telmisartan and Amlodipine respectively. The products are used for the treatment of blood pressure and hypertension; both of which the plaintiff claimed are well known amongst the relevant class of customers and healthcare professionals, given their extensive use, availability, and commercial promotion.
Glenmark made out the case that in September 2022 it had received reports of counterfeit Telma and Telma-AM products being sold in Delhi markets. Post which it conducted extensive surveys and was able to identify the defendant as the party involved in selling counterfeits. The plaintiff emphasized that the defendant had copied the trade mark, trade dress, and get up of the genuine products. The Court upon comparing the genuine and the counterfeit products came to the conclusion that the products shared a remarkable similarity that would deceive even astute consumers. Concluding that the plaintiff had made out a case for granting an injunction – establishing a prima face case, with the balance of convenience lying in its favour and irreparable harm – the Court passed an ex parte injunction against the defendant.
Despite granting the injunction in Glenmark’s favour, the Court noted that “an injunction, at this stage, is perhaps too little, too late, when substantial damage may already have been caused by their delayed action.” Given the seriousness of spurious drugs entering the market and their impact on public health, the Court stated the plaintiff should have acted with more promptness in filing the present suit and also should have issued public notices to caution its consumers against the counterfeited product. This observation was made given the fact that the suit was filed nearly three months after the plaintiff had become aware of the existence of the counterfeit products in September-October 2022.
Concerning counterfeiting
While seeking the injunction, the plaintiff also stated that the jurisdictional drug inspector was notified about the issue, however, there was no response on the action taken – against which the Court directed the drug inspector to submit a status report regarding the complaint. Counterfeit medicines continue to be a major issue of concern in the Indian market. Particularly, with the Covid-19 pandemic there has been a significant raise in the reported instances of fake drugs being circulated in the market. The World Health Organisation (WHO) reports that almost 10% of medical products sold in middle and low-income countries are falsified. Spurious drugs present a great threat to patient safety and public health. However, drug regulation concerning quality and effectiveness of medical products remains dangerously lax. Prashant Reddy’s book, The Truth Pill, co-authored with Dinesh Thakur extensively covers the ominous state of affairs of drug regulation in India. Falsified drugs are difficult to detect and often come to attention largely based on IP infringement, which is often the better outcome considering the potential impact of the same includes fatality and significant endangerment of public health. Further, the economic impact of falsified drugs has been identified to include increased healthcare spending and costs, losses for those in legitimate medical product supply chains, and the increased burden for healthcare professionals, regulatory authorities, and law enforcement. Given the large-scale negative impact of falsified drugs and also given that Glenmark’s products were fast-moving pharmaceutical products, the injunction may in fact be too little, too late. However, the Court order noting the necessity for issuing public notice regarding the existence of counterfeit products provides an immediate action point for manufacturers of medical products to undertake when they become aware of counterfeits.