India: Plagiarism in Medicinal World

Last Updated: 14 June 2006
Article by Manisha Singh

Plagiarism, the act of appropriating the literary composition of another author, or excerpts, ideas, or passages there from, and passing the material off as one's own creation which has plagued the world ever since one remembers, is now regarded as violation of copyright by the court. May it be the plagiarism of the ‘Da Vinci Code’ or Kaavya Viswanathan, facing plagiarism charges for her debut novel 'How Opal Mehta Got kissed, Got Wild and Got a Life" for having similarities with Megan F McCafferty's novels 'Sloppy Firsts' (2001) and 'Second Helping' (2003), has become the burning issue of the day. Juries have a difficult time determining the occurrence of unlawful copying. The plaintiff must show that the alleged plagiarist had access to the copyrighted work and the alleged plagiarism is based on a substantial similarity between the two works. The Second Circuit Court of Appeals in Abkco Music, Inc. v. Harrisongs Music, Ltd., 722 F.2d 988 (1983), found "unconscious" infringement by the musician George Harrison, whose song "My Sweet Lord" was, by his own admission, strikingly similar to the plaintiff's song, "He's So Fine." To establish substantial similarity, which is essentially a subjective process, is at times quite difficult. It is not necessary that the alleged infringement of copyright should be an exact or verbatim copy of the original but its resemblances with the original in a large measure is sufficient to indicate that it is a copy. (R.G.Anand v. Delux Film, AIR 1978 SC 1613). While dealing with cases relating to passing off, the Supreme Court in National Sewing Thread Co. Ltd., Chidambaram Vs. James Chadwick and Bros Ltd.(AIR 1953 SC 357), held that the real question to decide whether a particular trade mark is likely to deceive or cause confusion, is to see as to how a purchaser, who must be looked upon as an average man of ordinary intelligence, would react to a particular trade mark, what association he would form by looking at the trade mark, and in what respect he would connect the trade mark with the goods which he would be purchasing. It further held that a critical comparison of the two names may disclose some points of difference but an unwary purchaser of average intelligence and imperfect recollection would be deceived by the overall similarity of the two names having regard to the nature of the medicine he is looking for with a somewhat vague recollection that he had purchased a similar medicine on a previous occasion with a similar name (Amritdhara Pharmacy Vs. Satya Deo, AIR 1963 SC 449). In Cadila Healthcare Limited v. Cadila Pharmaceuticals Limited (AIR 2001 SC 1952), the Court observed that where medicinal products are involved, the test to be applied for adjudging the violation of trademark law might not be at par with cases involving non-medicinal products. A stricter approach should be adopted while applying the test to judge the possibility of confusion of one medicinal product for another by the consumer. While confusion in the case of non-medicinal products may only cause economic loss to the plaintiff, confusion between the two medicinal products may have disastrous effects on health and in some cases life itself. Stringent measures should be adopted specially where medicines are the medicines of last resort as any confusion in such medicines may be fatal or could have disastrous effects. The confusion as to the identity of the product itself could have dire effects on the public health.

The question of plagiarising the work by using identical combination and identical potency of the medicine was again raised in Dr. Reckeweg & Co. GMBH v. S.M. Sharma M.D (2006 (32) PTC 458 (Del.)). In the instant case the plaintiffs who were a company incorporated in Germany and an attorney, had has been manufacturing and marketing homeopathic medicines for 50 years, which were marketed and sold as drops in the alphanumeric series R-1 to R-75. The plaintiffs placed on record their copyright registration in respect of catalogue pertaining to 75 homeopathic specialty medicines and the literature containing the unique composition and formulation of the medicines. When injunction was filed against the defendants restraining them from infringing the copyright in the plaintiffs’ catalogue and literature pertaining to the homeopathic medicines and also from using the alphanumeric series L-1 to L-75 in respect of homeopathic medicines, the defendants were due to launch their homeopathic specialty drops in the alphanumeric series Lords L-1 to L-75. The description in these series was absolutely identical to what had been copyrighted by the plaintiffs. The court observed that the plaintiffs could not have a copyright on the numerals or the alphabets individually but when the alphanumeric combination was used for a medicine which cured an ailment, and a similar alphanumeric combination was used for another medicine which cured a substantially similar ailment, and if the alphanumeric combination and substantial similarity in the ailment persisted for medicine after medicine and for ailment after ailment and in the same sequence, then it was just not possible to entertain a belief that it was co-incidence . Since the entire ‘R series’ ailment by ailment and medicine by medicine had been substantially copied or adapted by the defendants in their amended catalogue, the court held that there was clear dishonest intention of plagiarising the work of the plaintiffs. Further elucidating plagiarism it viewed:

"It is quite natural to expect that whenever there is an attempt at infringing a copyright or at plagiarism, the infringer or plagiarist will, more often than not, make minor alterations and corrections here and there to deflect an allegation or infringement or plagiarism. Therefore, if there is a word-by-word analysis or a sentence-by-sentence analysis of the copyrighted work and the infringing material, there are bound to be some apparent difference; but that does not mean that the copyrighted work has not been infringed or plagiarised."

The court thus restrained the defendants from using the alphanumeric series L-1 to L-75 in respect of the same medicinal product for the same ailment as per the catalogue of the plaintiffs since that amounted to clear infringement of the plaintiff’s copyright. The decision thus proves the court’s strict attitude towards plagiarising in medicinal field thereby showing concern about general public health saving them from the dire consequences.

© Lex Orbis 2006

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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