Registration of Pharmaceutical Brands in India
Intellectual property is a pharmaceutical company’s most valuable asset, and IP protection is essential to the success of pharmaceutical and pharmaceutical outsourcing industry. In Intellectual property rights Trademark protection has important status and it has significance in pharmaceutical company.
A Trademark is a visual symbol in the form of a word, a device ,or a label applied to articles of commerce with a view to indicate to the purchasing public that is a good manufactured or otherwise dealt in by a particular person as distinguished from similar goods dealt or manufacture by other persons.
Trademark protection applies to words, short sentences, and symbols that manufacturers use to identify and distinguish their products from those of others. Service marks are the same as trademarks, except that they identify and distinguish the source of a service rather than a product. The name of pharmaceutical companies and their products are invariable trademarked.
What are the benefits of Trademark Registration of Pharmaceutical brands in India?
A Trademark helps the consumers to identify and purchase a brand because of its nature and quality, indicated by its unique Trademark, to meet their needs. By registering a brand, the owner of the pharmaceutical brand protects the goodwill of the business. Hence, the Trademark contributes to the commercial value of the brand to which it is applied, and increases the marketability.
The registered owner of a Pharmaceutical brand receives the presumptive right of the brand owner to use the registered brand and can indicate it by using the Trademark symbol ™ or ® in relation of those brands for which the owner has registered the brand. The registered brand name owner can stop other traders from using his brand unlawfully. The registered owner of a brand can sue other traders for recovery of profits, damages and costs in case of Trademark infringement. Trademark provides the guarantee for the unchanged quality and helps in creating and advertising the goods and services in public.
It serves as a constructive notice in general public about the ownership claim of the Trademark. Registration of Pharmaceutical brands in India can be used as a basis of registration of Trademark in other countries.
What Pharmaceutical brands are registrable in India?
All brands used in the trade are not registrable. The trademark law does not provide for the registration of all brands used in trade and business. Brands those satisfy certain requirements are only registrable. Therefore a brand which satisfies the prescribed requirements could be registered. Here it is very pertinent to know the requirements that a brand should satisfy for registration. The requirements that a brand should satisfy are as follows.
1. The Pharmaceutical brand should be capable of being represented graphically.
2. The Pharmaceutical brand should be capable of distinguishing the goods or services of one from those of others.
3. The Pharmaceutical brand must be used in relation to goods or services for the purpose of indicating or so as to indicate a connection in the course of trade between the goods and services.
What Pharmaceutical brands are not registrable in India?
Certain brands are not registrable either in the public interest or due to the prohibition of such brands from registration in India under the statute for various reasons. The following brands are accordingly not registrable.
1 Pharmaceutical brands that contains or comprises of any matter likely to hurt the religious susceptibilities of any class or section of the citizens of India;
2. Pharmaceutical brands that comprises or contains scandalous or obscene matter;
3. Pharmaceutical brands which has the nature as to deceive the public or cause confusion;
4. Pharmaceutical brands prohibited under the Emblems and Name (prevention of Improper use) Act, 1950;
5. Pharmaceutical brands consisting exclusively the shape of goods which results from the nature of the goods themselves;
6. Pharmaceutical brands containing the shape of goods which is necessary to obtain a technical result or the shape, which gives substantial value to the goods.
What are the grounds for refusal of Pharmaceutical brand registration in India?
According to the Trademark law grounds for refusal for Pharmaceutical brand registration in India can be divided into two headings as absolute grounds and relative grounds. The following grounds are considered as grounds for the refusal of the registration of a Pharmaceutical brand in India.
Absolute grounds for refusal of Pharmaceutical brand registration in India are:
1. Pharmaceutical brands devoid of any distinctive character or not capable of distinguishing the goods or services of one person from those of others.
2. Pharmaceutical brands which indicates quality or other descriptive character of the goods or services.
3. Pharmaceutical brands which have become customary in the current language or in the bona fide or established practice of the trade.
4. Pharmaceutical brands to the trade or generic names or marks common, chemical names and international non-proprietary names.
5. Pharmaceutical brands likely deceive public or cause confusion.
6. Pharmaceutical brands comprising scandalous or obscene matter or likely to hurt religious susceptibilities of any class or section of the citizens in India.
7. Pharmaceutical brands prohibited under Emblems and Names (Prevention of Improper Use) Act, 1950.
8. Pharmaceutical brands shape of which results from the nature of the goods themselves.
9. Pharmaceutical brands the shape of which is necessary to obtain a technical result.
10. Pharmaceutical brands the shape of which gives substantial value of the goods.
Relative grounds for refusal of Pharmaceutical brand registration in India are:
1. Pharmaceutical brands which are identical or similar to an earlier Trademark and the respective goods or services are identical or similar.
2. Pharmaceutical brand which are identical or similar to an earlier brandname, but the goods or services are not similar. The question of refusal of registration of a brand similar to an earlier brand where the goods are different can be considered only in opposition proceedings.
3. Pharmaceutical brands under passing off or law of copyright.