Level Of Tolerance Permitted For Confusion Among Customers In Pharmaceutical Products ‘Very Low’, Can’t Be Easily Condoned: Delhi High Court

The Delhi High Court has observed that the level of tolerance allowable for confusion among consumers is “very low” in pharmaceutical products which cannot be easily condoned.

Justice Prathiba M Singh was dealing with a suit filed by Glaxo Group Limited seeking protection of the packaging and trade dress of its product name “Aufmentin” used for pharmaceutical and medicinal preparations.

The suit was filed against a Mumbai based pharmaceutical company namely Precado Healthcare Private Limited. Glaxo was aggrieved by the defendant’s “imitative packaging” launched under the mark “Amoxyduo 625.” The product was manufactured by GG Nutritions, a company based in Himachal Pradesh.

The court granted an ex-parte injunction in favour of Glaxo by restraining the defendants from manufacturing or selling any pharmaceutical preparations in the green and white packaging or any other packaging which is a “colourable reproduction or a substantial imitation” of Glaxo’s product “AUGMENTIN.”

However, the court clarified that the Defendants were not injuncted from using the mark ‘AMOXYDUO’, so long as the same is in sold or manufactured in a packaging which is not confused with or imitative of Glaxo’s product packaging.

“While the Defendants’ mark ‘AMOXYDUO’ differs from the Plaintiff’s mark, the manner in which the packaging has been created, with the same green & white combination, and green red & white combination for writing of the mark shows that the same has been made deliberately to come as close to the Plaintiff’s ‘AUGMENTIN’ packaging,” the court said.

Furthermore, the court added that the fact that Glaxo’s product ‘AUGMENTIN’ is used both in rural and urban areas, the difference in the word mark ‘AUGMENTIN’ and ‘AMOXYDUO’ is insufficient to distinguish, due to the near identity in packaging.

Justice Singh said that there is a reasonable possibility of even chemists dispensing the Defendants’ products as a replacement or a similar product with that of Glaxo.

Counsel for Plaintiff: Ms. Tanya Varma Mr. Vardan Anand & Ms. Parkhi Rai, Advs.

Counsel for Defendants: None.

Title: GLAXO GROUP LIMITED v. PRECADO HEALTHCARE PRIVATE LIMITED AND ANR.

Citation: 2023 LiveLaw (Del) 966

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