In a major relief to Glaxo SmithKline Pharmaceuticals Ltd, the Delhi high court on Tuesday protected its popular preparation under the brand name 'OSTOCALCIUM' by restraining a Uttar Pradesh-based pharmaceutical firm from manufacturing and marketing their veterinary product under the mark 'ASTOCALCIUM'.
Justice Manmohan Sarin in an ex parte interim order directed Kanpur-based KPS Enterprises not to manufacture and market their products under the brand name 'ASTOCALCIUM' or 'ASTOCALCIUM VET' or any mark deceptively similar to Glaxo's 'OSTOCALCIUM' or 'OSTOCALCIUM VET'.
The pharmaceutical major alleged that the adoption of the impugned mark by KPS Enterprises was illegal and unlawful as it amounts to infringement of registered trademark.
Advocate Manmohan Singh, appearing for Glaxo, alleged that the UP-based firm was passing off its goods as those of the pharmaceutical major.
He contended that the act of the local firm amounts to infringement of the trademark rights bestowed with Glaxo in the mark 'OSTOCALCIUM' because the competing goods are identical i.e veterinary products and the class of customers and channel of trade are identical.
"The goods manufactured by the plaintiff (Glaxo) and the defendant (KPS Enterprises) are purchased by the same class of purchasers particularly farmers, shepherds, illiterate
persons, who under the circumstances are unable to make clear distinction between the goods of the two companies," the counsel said.
Glaxo alleged that by adopting the deceptively identical trade name and the packaging of the products, KPS Enterprises was trying to take advantage of the goodwill and reputation built by it over the years.
Singh submitted that there was all likelihood for the potential customers to be confused and get the impression that the two pharmaceutical companies have some connection.
The pharmaceutical major contended that the rival's product under the brand name 'ASTOCALCIUM' was prepared for animals and birds and there was all likelihood of its harmful effect as the customer would believe that the spurious product was associated with Glaxo.
Alleging that the adoption of identical packaging pattern for the product amounts to infringement of copyright in Glaxo's artistic work, the counsel submitted that KPS Enterprises copied all the descriptive matters, pictures of animals, directions of medicines, colour scheme, get-up and lay out to pass of its goods as that of Glaxo.
