Issues of passing off and copyright violation shadow the Indian litigation scenario today more than ever before. As corporations and companies increasingly value their intellectual property, the spite amongst rivals seems to be on the rise. In such an event, it is necessary that the Courts witness and adopt a rationale, that creates a balance between sensitive particulars and pronouncements, while administering justice. Eye-witnessing such a judicial stance is the case of Dr. Reckeweg and Co. Gmbh & Anr. v . Adven Biotech Pvt. Ltd. (CS (OS) 1189/2007)
DR. Reckeweg. filed a suit for an ad-interim order to restrain Adven Biotech from passing off and infringing their copyright, by using the identification numbers in respect of homeopathic medicines which are claimed to be deceptively similar to Reckeweg' marks. Reckeweg is a company incorporated under the laws of Federal Republic of Germany, manufactures and markets homoeopathic medicines for the past sixty years, sold in forty countries across the globe
Reckeweg contended that the 'R' Series code displayed on packaging containing homeopathic specialties have been used in India extensively since the year 1980. They averred that the efficacy and consequent acceptability of these medicines is such that mere mention of letter "R" in conjunction with the requisite numeral was enough to indicate their product. They claimed to be owner of the copyrights of the literary works pertaining to homeopath, and that they had prepared and developed catalogues in English, Hindi and Bangla in relation to the R series of medicines, circulated free of cost in order to guide the intermediary stockists, practioners and users.
Reckeweg learnt of Adven marketing homeopathic medicines under the alpha numeric series deceptively similar to theirs as A-1 to A-75. They stated that though the products had been launched formally, commercial distribution of the same had not commenced. It is alleged that not only did the defendants completely. They alleged Adven of copying both the alpha numeric series and a substantial portion of the literature/catalogue which rendered the unique composition and description of the homeopathic products amounting to violation of Trade Marks Act and Copyright Act.
Considering the series, it was asserted that a blatant copy of the same had been made, since omissions made under the "R" series, were also made in the "A" series. Further, they stated that the names assigned by the Adven were identical. To substantiate their stand, they submitted a comparative chart of Adven and Reckeweg's products, in addition to citing a plethora of decisions.
Adven cited the Court's earlier ruling of Dr. Reckeweg Vs. Dr. Wellnan Laboratories [2002 (25) PTC 98(Del)] where this court refused to injunct Wellnan from the use of WR1, WR2 and so on, as a alpha numeric series, in a similar action brought by the plaintiff. They also submitted that the Reckeweg could not be granted protection under the Patents Act due to operation of Section 3 which states that any process of medical treatment of human beings is not patentable. Therefore, they argued that the formulation of the medicines which is unprotected under patent law, cannot be indirectly given under the law of copyright. They also stated that the compositions of medicines were available in German, Indian and American Homeopathic Pharmacopeia. They alleged misappropriation of phrases which are publici juris, by addition of words used in common parlance to describe the ailment or its symptoms and hence, not being copyrightable. Adven stated that Reckeweg had suppressed facts and decisions, and hence a case for violation of copyright or passing off had not been made out.
Dealing with the issue of passing off, the Court observed that the principles of the law relating to passing off could be applied only in relation to the shape, configuration, get-up etc. of the product and does not extend to any literature in relation to the products. Adven's name was displayed prominently, on the packaging and no immediate cause in relation to passing off was deciphered by the Court.
The Court observed that the jurisprudence behind copyrights had evolved from the "test of the brow" test to possessing "some modicum of creativity". The Court making an objective assessment of each of Reckeweg' claims rendered them baseless and ruled in favour of Adven.
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