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Pune Court Refuses To Stop Serum Institute Of India From Using 'COVISHIELD' Name For COVID-19 Vaccine

LIVELAW NEWS NETWORK
31 Jan 2021 3:57 AM GMT
Pune Court Refuses To Stop Serum Institute Of India From Using COVISHIELD  Name For COVID-19 Vaccine
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A commercial court in Pune on Saturday refused to pass interim injunction to restrain the Serum Institute of India(SII) from using the trademark "COVISHIELD" for its vaccine for the Coronavirus induced pandemic.The order was passed in a passing off suit filed by a Nanded-based pharmaceutical company "Cutis Biotech" which claimed to be the "lawful and prior user" of the...

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A commercial court in Pune on Saturday refused to pass interim injunction to restrain the Serum Institute of India(SII)  from using the trademark "COVISHIELD" for its vaccine for the Coronavirus induced pandemic.

The order was passed in a passing off suit filed by a Nanded-based pharmaceutical company "Cutis Biotech" which claimed to be the "lawful and prior user" of the tradename "COVI SHIELD".

The Court held that the plaintiff could not prima facie prove the triple tests of the passing off a trade mark i.e. goodwill of the plaintiff, misrepresentation by the defendant and damages to the plaintiff.
It also held that if the SII is restrained from using the trade name "COVISHIELD" it would lead to great hardship for people to identify the much awaited COVID-19 vaccine.
"Since last several months, not only India, but the world is facing the pandemic of Covid­19. All people are desperate to get a preventive medicine for said disease. Now, the defendant company and some other companies are manufacturing the vaccine for such deadly disease of Covid­19. It is a step towards control over the pandemic of Covid­19. Now, it is much desirable product and much awaited product by the people all over the country and all over the world. If, at this stage, defendant is restrained from using the trademark of 'Covishield' and distributing this vaccine under the said trade mark, it would be great hardship to the people to identify the product of defendant. Therefore, comparative hardship and balance of convenience certainly lie in favour of defendant.

On the contrary,if the interim injunction is not granted, the products of plaintiff still can be in the market and it can sell the product under its name as the purposes of products of plaintiff are totally different. Those are disinfectants for hand, surface and vegetable washing liquid and other purposes mentioned in their application. Comparatively,defendant and its customer would suffer great hardship than the plaintiff, if the injunction is granted. Therefore, this point lies in favour of the defendant", the order said.

The Court further held that the plaintiff could not point out that, due to the use of the trade mark 'Covishield' by defendant, it is going to suffer "irreparable loss".

"The losses alleged by plaintiff can be quantified, if proved during trial. Therefore, loss cannot be said to be an irreparable loss and that too prima facie at the hands of defendant.Therefore, this point also goes against the plaintiff", the order passed by AV Rotte, District Judge-2, Pune(designated as Commercial Court, Pune) stated.

The Court also made a prima facie observation that Cutis Biotech did not approach the Court with "clean hands" as it had suppressed the subsequent application dated 12/12/2020 filed by the plaintiff for registration of the trade mark 'Covishield' for vaccine and other purposes,

"...plaintiff could not point out that, balance of convenience lies in its favour nor plaintiff could point out that, it is going to suffer irreparable loss. The prima facie approach of the plaintiff to this Court with clean hands, is seen to be doubtful.Therefore, in all, I am of the view that, plaintiff is not entitled for the interim injunction", the court said.

Cutis had filed a similar suit at a court in Nanded, in which the Additional District Court at Nanded issued notice to the defendants on December 11 last year. However, the said suit was later withdrawn and fresh commercial suit was filed in Pune.

The Drug Controller General of India, on January 3, approved the use of 'Covishield' vaccine developed by Oxford-AstraZeneca and produced in India by SII for "restricted emergency use".

Adar Poonawalla, the CEO of the Pune-based SII, had announced on December 7 that it has applied for emergency use authorisation for Covishield coronavirus vaccine.

"As promised, before the end of 2020, @SerumInstIndia has applied for emergency use authorisation for the first made-in-India vaccine, COVISHIELD. This will save countless lives, and I thank the Government of India and [email protected] for their invaluable support," the CEO of Serum Institute of India said in a tweet.



A few days before that, on November 29, the Prime Minister, Narendra Modi, had visited the company's vaccine facilities in Pune and interacted with the officials there.


Cutis Biotech says in its suit that it has placed orders before several manufacturers for other medicinal products under the name "COVI SHIELD" but the manufacturers are expressing reluctance to take orders from it under the name 'COVI SHIELD' due to news published about SII using the name.

The plaint alleges that the SII made application for the tradenames "COVI SHIELD" and "COVID SHIELD" only in June. The plaintiff claims that it had filed an application for registration of "COVI SHIELD" trademark in its name on April 29, 2020.

It claimed that irrespective of the fact that the trademark registration application is pending, the plaintiff has right to seek remedy against the defendants for passing off.

The suit seeks the following prayer :

"Pass a decree for perpetual injunction may kindly be issued restraining and prohibiting the defendants or any other persons claiming through them from passing off medicinal and pharmaceuticals, allopathic, veterinary, ayurvedic preparations or products for human use and animals as well as vitamins and dietary supplements for humans and animals under the trade name "COVI SHIELD" as well as the trademark "COVID SHIELD" which is identical or similar to the plaintiff's trademark "COVI SHIELD".

Click here to read/download the order













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