No Tolerance in Medicinal Trademarks: Bombay High Court Injuncts ‘ZEROVOL-P’, Awards Costs

No Tolerance in Medicinal Trademarks: Bombay High Court Injuncts ‘ZEROVOL-P’, Awards Costs

Introduction

The Bombay High Court has held Anrose Pharma liable for infringement and passing off of IPCA Laboratories Limited’s well-known trademark ‘ZERODOL’. The Court permanently restrained Anrose Pharma from using the impugned mark ‘ZEROVOL-P’ and imposed ₹15 lakh as costs, underscoring that public health considerations demand strict enforcement.

Factual Background

IPCA Laboratories coined and adopted the trademark ‘ZERODOL’ in 1992 and has used it continuously since 2003 for pain-relief and pharmaceutical preparations. The mark enjoys statutory protection and market recognition.

In October 2013, IPCA discovered that Anrose Pharma was manufacturing and selling a pharmaceutical product under the mark ‘ZEROVOL-P’. The plaintiff procured samples and invoices of the infringing product and placed them on record, asserting that the impugned mark was deceptively similar to its registered trademark and likely to cause confusion.

Procedural Background

IPCA Laboratories instituted a commercial intellectual property suit before the Bombay High Court seeking a permanent injunction, delivery of infringing material, and consequential reliefs. Despite service of summons, Anrose Pharma failed to appear or file a written statement. The suit therefore proceeded as an undefended matter before Justice Arif S. Doctor.

Issues

1. Whether ‘ZEROVOL-P’ is deceptively similar to ‘ZERODOL’.

2. Whether the defendant’s use amounted to statutory trademark infringement and passing off.

3. Whether stricter standards apply in assessing similarity for pharmaceutical products.

4. Whether deterrent costs should be imposed in a commercial IP suit.

Contentions of the Parties

Plaintiff: IPCA contended that the impugned mark was visually and phonetically almost identical to ‘ZERODOL’, with the dominant feature being deceptively similar. It argued that in medicinal products, even a likelihood of confusion poses a serious risk to public health and warrants strict judicial intervention.

Defendant: The defendant did not appear or contest the proceedings. No explanation or justification was offered for adoption of the impugned mark.

Reasoning and Analysis

Justice Arif S. Doctor applied settled principles governing deceptive similarity, holding that rival marks must be compared as a whole, from the perspective of a person of average intelligence and imperfect recollection. The Court found that ‘ZEROVOL-P’ was visually and phonetically almost identical to ‘ZERODOL’, with no credible explanation for such adoption.

The Court stressed that pharmaceutical trademarks demand a higher threshold, as confusion between medicinal products can have grave public health consequences. The absence of any defence, coupled with the defendant’s failure to cross-examine the plaintiff’s witness or contest evidence, led the Court to conclude that the adoption of the impugned mark was dishonest and in bad faith.

While declining to award damages for want of specific proof of loss, the Court invoked Section 35 of the Code of Civil Procedure, as amended by the Commercial Courts Act, noting that commercial suits require realistic and deterrent costs. The Court observed that the defendant’s conduct, especially in a case involving medicines, warranted strict consequences.

Decision

The Bombay High Court decreed the suit in favour of IPCA Laboratories Limited, granted a permanent injunction restraining Anrose Pharma from using the mark ‘ZEROVOL-P’, directed delivery of infringing material for destruction, and imposed ₹15,00,000 as costs on the defendant. The Court held that in cases involving medicinal products, even the possibility of confusion is unacceptable and must be decisively curbed.

In this case the plaintiff was represented by Mr. Minesh Andharia along with Mr. Jay Shah instructed by Krishna & Saurastri Associates LLP.