Trademark search report needed to obtain drug manufacturing licences

India

In a move to curb the manufacture and sale of counterfeit drugs, the Drugs Control Department of the National Territory of Delhi has announced that it will no longer approve drug manufacturing licences under a particular mark without the backing of a search report on that mark from the registrar of trademarks.

This initiative stems from observations made by the Supreme Court in Cadila Health Care Ltd v Cadila Pharmaceuticals Ltd ((2001) SCL 534), in which it stated:

"Keeping in view the provisions of Section 17-B of the Drugs and Cosmetics Act 1940, which inter alia indicates an imitation or resemblance of another drug in a manner likely to deceive being regarded as a spurious drug it is but proper that before granting permission to manufacture a drug under a brand name the authority under that act is satisfied that there will be no confusion or deception in the market. The authorities should consider requiring such an applicant to submit an official search report from the Trademark Office pertaining to the trademark in question which will enable the drug authority to arrive at a correct conclusion."

If adopted in other Indian states, the search report requirement will help local drug authorities to determine whether licensing applications are from suspected counterfeiters.

In related news, the Mashelkar Committee, appointed by the Indian government to study the growing threat of counterfeit drugs, has submitted an interim report. The report has been welcomed by drug regulatory officials and it is hoped that it will lead to other measures being put into place to help curb the rise in the sale of counterfeit drugs.

Vaibhav Parikh, Nishith Desai Associates - Legal & Tax Counselling Worldwide, Mumbai

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