Syntex Pharm AG, in a move against
Cipla Limited and Syntex USA LLC [Syntex Pharma AG V. Cipla
Limited and Syntex USA LLC. Notice of Motion No 3725 of 2008 in
Suit No 2997 of 2008] alleged them for breach of trade mark
before the High Court of Bombay. Syntex (USA) Inc was the
registered proprietor of trademark 'Cellcept'. Later Syntex
(USA) Inc merged into second defendant. Pursuant to merger all the
rights of the Syntex (USA) Inc including intellectual property
rights were transferred to the second defendant. Later, the second
defendant assigned the Syntex Pharma AG with the trademark over the
name 'Cellcept' by a deed of assignment. Syntex Pharma AG
submitted that the mark 'Cellcept' has been openly used in
respect of medical and pharmaceutical preparation. Syntex Pharma AG
in the plaint stated a medicinal preparation under the trade mark
'Valcept' was introduced by the first defendant which was
phonetically, visually and structurally similar to trade mark
'Cellcept'. Further it was averred that first defendant had
made application for registration of the trade mark
'Valcept' in respect of medical and pharmaceutical
preparation whereas 'Cellcept' is an immunosuppressive
drug, both are similar and chances for administration of
'Valcept' by patients instead of 'Cellcept' are
higher. Thus it was asserted an injunction must be granted to avoid
such dangerous consequence.
The first defendant contented that
the Drug Controller General while granting the permission to the
first defendants had imposed a condition, that on the label of the
product a warning 'to be sold by retail on prescription of
specialists only' should be printed. It was submitted that both
the products are to be dispensed only against a prescription given
by the specialist thus avoiding any confusion. The first defendant
further submitted that they had conceived the trade mark
'Valcept' in respect of the medical preparation containing
'Valganciclivir HCI' as its active ingredient and they were
genuinely not breaching the rights of Syntex Pharma AG.
Distinguishing the pricing of the products in contention, the first
defendant pointed out the vast difference between the price of
product of the plaintiff and the defendants. Syntax Pharma AG
preparation is priced at Rs515 for ten tablets, whereas that of
first defendant is Rs980 for four tablets. In discussing the case,
first defendant relied upon the decision of Aristoc Ltd. V.
Rysta Ltd.[AIR 1963 SC 449] to construe that the mark must be
considered and compared as a whole and its is not correct to take a
portion of it and compare it.
The court opinioned that the trade
mark of Syntex Pharma AG 'Cellcept' and the trade mark of
the first defendant 'Valcept' had phonetic similarity. In
this view, the consequences of letting the first defendant to sell
their products by using the offending trademark were found
disastrous. Considering the dangerous consequence which might
follow in case of confusion, the issue of balance of convenience
was held to be in favour of Syntex Pharma AG. Further opining upon
the notice of motion, it was stated that the operation of this
order shall stay since notice of motion was pending for a long time
for hearing of prayer for ad-interim relief.
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