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20 May 2019

Delhi High Court issues landmark nutraceuticals judgment

The High Court of Delhi has ruled that the test for passing off of so-called nutraceuticals should be the same as that for pharmaceuticals.

The landmark judgment, delivered on May 10, is the first instance in which the court has held that nutritional food supplements should be subject to the stricter standard which is currently applied to pharmaceuticals but not nutraceuticals.

Trademarks ‘Gloeye’ and ‘Glotab’ were at the centre of the dispute. Sun Pharmaceutical owns ‘Gloeye’, which was registered in 2005, while Ajanta Pharma's ‘Glotab’ was registered in 2011.

Both marks cover dietary supplements used to treat age-related dimness of vision and diabetic retinopathy and, as both products contain plant extracts, they are categorised as nutraceuticals under India’s Food Safety and Standards Act 2006.

Ajanta first started to use the ‘Glotab’ mark in 2013, and Sun applied for an interim injunction the following year.

Sun claimed it had clear prior use of the mark by at least eight years, and that there is a likelihood of confusion between the products sold under ‘Gloeye’ and those sold under ‘Glotab’.

Although the products are nutraceuticals, they should be treated the same as pharmaceuticals when being assessed for passing off, Sun said.

In response, Ajanta argued the registration of ‘Glotab’ shows that “even the trademark authorities do not consider ‘Glotab’ or ‘Gloeye’ to be similar”.

Ajanta then claimed the test laid down by the Supreme Court of India in Cadila Health Care v Cadila Pharmaceuticals is not fully applicable to nutraceutical products.

In Cadila, the court held that “public interest would support a lesser degree of proof showing confusing similarity in the case of trademark in respect of medicinal product as against other non-medical products”.

Meanwhile, Sun said products used to treat an ailment, even those which are not pharmaceuticals, should be subject to the test laid down in Cadila as such products are medicinal by their nature.

Last week, the High Court of Delhi agreed with Sun.

“This court is of the opinion that the mere fact that these products are nutritional food supplements or nutraceuticals and are not pharmaceuticals in the strict sense is not convincing enough for adoption of a less stringent test,” it said.

The court added: “The mere fact that nutraceuticals are termed so, as they contain ingredients derived from plants, does not mean that a lenient test needs to be adopted in respect of these products.”

Therefore, where the effect and the consumers of the products in question are similar, the Cadila test should be applied to nutraceuticals in the same way that it is applied to pharmaceuticals, the court said.

In this case, the marks themselves are “deceptively similar” and the suffixes ‘eye’ and ‘tab’ do not sufficiently distinguish them, the court concluded.

The court awarded an interim injunction to Sun, under which Ajanta is prohibited from selling any medicinal or otherwise consumable products for treating illnesses under the ‘Glotab’ mark.

Kapil Wadhwa, partner at Wadhwa Law Chambers, who represented Sun in the proceedings, shared the landmark judgment with LSIPR.

Suhrita Majumdar, trademark attorney at S. Majumdar  & Co, who represented Ajanta in the proceedings, said: "We haven’t seen many precedents on nutraceuticals in India in comparison to the various decisions on pharmaceuticals. It would be interesting to see how the courts shape the law in this case."

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