Issues of passing off and copyright violation shadow the
Indian litigation scenario today more than ever before. As
corporations and companies increasingly value their
intellectual property, the spite amongst rivals seems to be on
the rise. In such an event, it is necessary that the Courts
witness and adopt a rationale, that creates a balance between
sensitive particulars and pronouncements, while administering
justice. Eye-witnessing such a judicial stance is the case of
Dr. Reckeweg and Co. Gmbh & Anr. v . Adven Biotech
Pvt. Ltd. (CS (OS) 1189/2007)
DR. Reckeweg. filed a suit for an ad-interim order to
restrain Adven Biotech from passing off and infringing their
copyright, by using the identification numbers in respect of
homeopathic medicines which are claimed to be deceptively
similar to Reckeweg' marks. Reckeweg is a company
incorporated under the laws of Federal Republic of Germany,
manufactures and markets homoeopathic medicines for the past
sixty years, sold in forty countries across the globe
Reckeweg contended that the 'R' Series code
displayed on packaging containing homeopathic specialties have
been used in India extensively since the year 1980. They
averred that the efficacy and consequent acceptability of these
medicines is such that mere mention of letter "R" in
conjunction with the requisite numeral was enough to indicate
their product. They claimed to be owner of the copyrights of
the literary works pertaining to homeopath, and that they had
prepared and developed catalogues in English, Hindi and Bangla
in relation to the R series of medicines, circulated free of
cost in order to guide the intermediary stockists, practioners
Reckeweg learnt of Adven marketing homeopathic medicines
under the alpha numeric series deceptively similar to theirs as
A-1 to A-75. They stated that though the products had been
launched formally, commercial distribution of the same had not
commenced. It is alleged that not only did the defendants
completely. They alleged Adven of copying both the alpha
numeric series and a substantial portion of the
literature/catalogue which rendered the unique composition and
description of the homeopathic products amounting to violation
of Trade Marks Act and Copyright Act.
Considering the series, it was asserted that a blatant copy
of the same had been made, since omissions made under the
"R" series, were also made in the "A"
series. Further, they stated that the names assigned by the
Adven were identical. To substantiate their stand, they
submitted a comparative chart of Adven and Reckeweg's
products, in addition to citing a plethora of decisions.
Adven cited the Court's earlier ruling of Dr.
Reckeweg Vs. Dr. Wellnan Laboratories [2002 (25) PTC
98(Del)] where this court refused to injunct Wellnan from the
use of WR1, WR2 and so on, as a alpha numeric series, in a
similar action brought by the plaintiff. They also submitted
that the Reckeweg could not be granted protection under the
Patents Act due to operation of Section 3 which states that any
process of medical treatment of human beings is not patentable.
Therefore, they argued that the formulation of the medicines
which is unprotected under patent law, cannot be indirectly
given under the law of copyright. They also stated that the
compositions of medicines were available in German, Indian and
American Homeopathic Pharmacopeia. They alleged
misappropriation of phrases which are publici juris,
by addition of words used in common parlance to describe the
ailment or its symptoms and hence, not being copyrightable.
Adven stated that Reckeweg had suppressed facts and decisions,
and hence a case for violation of copyright or passing off had
not been made out.
Dealing with the issue of passing off, the Court observed
that the principles of the law relating to passing off could be
applied only in relation to the shape, configuration, get-up
etc. of the product and does not extend to any literature in
relation to the products. Adven's name was displayed
prominently, on the packaging and no immediate cause in
relation to passing off was deciphered by the Court.
The Court observed that the jurisprudence behind copyrights
had evolved from the "test of the brow" test to
possessing "some modicum of creativity". The Court
making an objective assessment of each of Reckeweg'
claims rendered them baseless and ruled in favour of Adven.
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