As the amount of Rs 1.5 crore was decided to be imposed, plaintiff’s counsel submitted that his clients wanted to donate the entire amount to a charitable organization. Therefore, keeping in mind the catastrophe that has hit Kerala, it was decided that the money would be directly paid towards the Chief Minister’s Distress Relief Fund.
The Bombay High Court recently imposed an unprecedented Rs 1.5 crore as cost on Galpha Laboratories for being guilty of habitual infringement and directed the pharma company to draw a demand draft in favour of the Chief Minister’s Distress Relief Fund for Kerala floods.
Justice SJ Kathawalla was hearing a suit filed by Glenmark Pharmaceuticals who alleged that the defendant Galpha Labs had blatantly copied the word mark, artwork, colour scheme, font style, manner of writing, trade dress of the plaintiff’s product cream CANDID-B calling it CLODID-B.
The court decided to impose such heavy costs after concluding that Galpha Labs were habitual infringers as various other cases of infringement were filed against them by several pharma companies.
When asked, Jyoti Prakash Narayan Singh, managing director of Galpha Labs, stated that the said trademark had been adopted by mistake and that his company has not been involved in any other infringing activities. He further stated that in the past 10 years, Galpha Labs has sold the impugned goods bearing the mark CLODID worth Rs 2.92 crores (approx). He also submitted that he is willing to submit to a decree and bring the present suit to an end.
However, plaintiff’s lawyer Hiren Kamod submitted that Galpha Labs is a habitual infringer. In the past, Galpha had copied their trademark ASCORIL and sold it as ASCODIL, thus, inviting a cease and desist notice by the plaintiffs. This happened in 2003, there were other instances when Galpha Labs had copied trademarks belonging to other well-known pharmaceutical companies.
Kamod informed the court that in 2016, the Delhi High Court had passed a judgment in the case of Win-Medicare Pvt. Ltd. Vs. Galpha Laboratories Ltd. & Ors., wherein it categorically observed that Galpha Labs is a ‘habitual infringer’. He submitted that various companies such as Centaur Pharma Pvt. Ltd., Franco-Indian Pharma Pvt. Ltd., Cipla Ltd. had filed suits for infringement/passing off against Galpha.
It was also found that in March 2017, the Central Drugs Standard Control Organization (CDSCO) had published a list of drugs which are “Not of Standard Quality/Spurious/Adulterated/Misbranded”. Five products belonging to Galpha Labs were included in this list. Consequently, the FDS Commissioner had directed Galpha Labs to withdraw its iron tablets from the market and asked 76,000 drug stores not to prescribe the said tablet.
Justice Kathawalla observed:
“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. However, nowadays, the corporate and financial goals of such companies cloud the decision of its executives whose decisions are incentivized by profits, more often than not, at the cost of public health. This case is a perfect example of just that.”
The court further noted-
“It is clear that the Defendant No.2 is not only indulging in infringing activities by repeatedly copying brands of other companies but also appears to be in complete violation of the FDA regulations. The conduct of the Defendant No.2 shows that this Defendant has no regard or respect to the rule of law. The consumers and general public are being repeatedly cheated by the Defendant No.2.
I am of the opinion that had this Defendant been imposed with exemplary costs at the very beginning of their infringing activities, this Defendant would not have been audacious in repeating its infringing activities.”
Recently Supreme Court while disposing an SLP filed by Kannur Medical College, directed the College to pay an amount of Rupees One Crore from the cost imposed by the Court to the Chief Minister’s Flood Relief Fund, Kerala.