Bombay High Court Imposes ₹15 Lakhs Cost On Anrose Pharma For Infringing 'ZERODOL' Trademark

The Bombay High Court has held that Anrose Pharma's adoption and use of the trade mark 'ZEROVOL-P' in respect of pharmaceutical products amounted to a clear case of infringement and passing off of IPCA Laboratories Limited's registered trade mark 'ZERODOL'. The Court observed that in matters involving medicinal products, a stricter standard of comparison is required, as even a likelihood of confusion poses a serious risk to public health. Justice Arif S. Doctor was hearing a commercial intellectual property suit filed by IPCA Laboratories Limited seeking a permanent injunction against Anrose Pharma for infringement of its registered trade mark ZERODOL and for passing off. The plaintiff had coined and adopted the mark ZERODOL in 1992 and had been using it continuously since 2003 in relation to pain relief and pharmaceutical preparations. In October 2013, the plaintiff discovered that the defendant was manufacturing and selling a pharmaceutical product under the mark ZEROVOL-P, which was procured along with invoices and placed on record. Despite service of summons, the defendant failed to appear or file a written statement, resulting in the suit proceeding as an undefended matter.The Court examined the rival marks and held that 'ZEROVOL-P' was visually and phonetically almost identical to 'ZERODOL', with the essential and dominant feature being deceptively similar. Applying settled principles governing deceptive similarity, the Court held that the marks must be compared as a whole from the perspective of a person of average intelligence and imperfect recollection. The Court noted that the defendant had not attempted to justify its adoption of the impugned mark or establish any honest or bona fide use. Given that both marks were used for medicinal products, the likelihood of confusion was found to be imminent and unacceptable.The Court further held that the plaintiff had successfully established statutory infringement as well as passing off. It observed that the defendant's continued absence from the proceedings, despite due service, and its failure to contest the evidence, warrant the conclusion that the adoption of the impugned mark was dishonest. While the Court declined to award damages in the absence of specific proof of loss, it emphasised that the suit being a commercial suit attracted Section 35 of the Code of Civil Procedure as amended by the Commercial Courts Act, mandating award of realistic and deterrent costs.“… the record reflects that the Defendant, in spite of being duly served, has chosen not to defend the Suit nor even cross-examine the Plaintiff's Witness. This conduct is an additional factor that makes it clear that the defendant's adoption of the impugned mark was dishonest and was actuated in bad faith. Moreover, the impugned products being medical products, a stricter order of costs must follow, as the Plaintiffs have profited at the potential risk to the public at large,” the Court observed.Accordingly, the High Court decreed the suit in favour of IPCA Laboratories Limited, granted a permanent injunction restraining Anrose Pharma from using the impugned mark, directed the delivery up of infringing material for destruction, and imposed costs of ₹15,00,000 on the defendant.Case Title: IPCA Laboratories Limited v. Anrose Pharma [COMMERCIAL IP SUIT NO. 77 OF 2013]Click Here To Read/Download Order

Bombay High Court Imposes ₹15 Lakhs Cost On Anrose Pharma For Infringing 'ZERODOL' Trademark

Saksham Vaishya

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