The Delhi High Court has refused to give interim relief to pharmaceuticals giant Sun Pharma which accused Finecure Pharmaceuticals Limited of infringing the trademark of its anti-acidity drug Pantocid.
Refusing Sun Pharma’s plea to stop Fincare from using the trademark till the disposal of its infringement suit, the court said on August 16 the company filed the plea only after releasing that the rival had become a formidable player in the market even though it was aware of the situation for 13 years.
In its petition, Sun Pharma alleged that Fincecure's anti-acidity drug Pantopacid was a convenient corruption of its trademarked Pantocid and was also deceptively similar to it.
Sun Pharma said it registered trademark to use Pantocid and the sales of the Pantocid range of drugs earned it Rs 386.8 crore in 2020-21 and Rs 513.63 crore in 2021-22.
It came to know of the use of Pantopacid trademark in April 2023 and approached the court.
Finecure contended it had Pantopacid trademarked since 2007. While Sun Pharma objected to the registration of the trademark in 2010, it waited for 13 years before approaching the court. Sun Pharma was not entitled to any relief solely on account of delay in approaching the court, it argued.
Noting that Pantopacid was a pantoprazole drug, Finecure argued that “panot” referred to the Active Pharmaceutical Ingredient of the drug, which was pantoprazole.
While, “P” indicated that the drug was a Proton Pump Inhibitor (PPI), thereby reflecting its mode of action and “acid” indicated that the drug treated acidity.
Finecure also argued that Sun Pharma's Pantocid trademark deserved to be revoked as it merely replicated, or abbreviated, the name of the pharmaceutical ingredient.
The court's observations
The court said Pantocid and Pantopacid looked and sounded alike and were used as brand names for pantoprazole.
"A customer, who seeks to buy the product to cure his acidity, and who is not well-versed with the names of drugs, is unlikely to be able to distinguish between Pantocid and Pantopacid,” it said.
The two drugs were structurally, phonetically and visually confusingly similar and Pantopacid prima facie infringed Pantocid.
What worked in Finecure’s favour
The court said while Sun Pharma contended that it came to know of Pantopacid in April 2023, it had known in 2010 that the trademark was being registered in Finecure Pharma's favour.
Sun Pharma approached the court after realising that Finecure had become a formidable market player, it said. "The balance of convenience would, in my opinion, would clearly not justify bringing the use of 'Pontopacid', by the defendants (Finecure), of the mark to a complete halt, at this late stage," it said.
Sun Pharma's failure to approach the court with “clean hands” disentitled it from any injunctive relief, it said.
The court directed Finecare to maintain a separate account of its earnings and returns from the use of Pantopacid and file an affidavit every three months.
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