Bombay High Court restrains Anrose Pharma from using ‘ZEROVOL-P’, imposes ₹15 lakh costs

The Bombay High Court has permanently restrained Anrose Pharma from using the trademark ‘ZEROVOL-P’ for pain relief medicines, holding it “virtually identical” to IPCA Laboratories’ registered trademark ‘ZERODOL’. The court directed the defendant to pay ₹15 lakh as costs within eight weeks, failing which interest at 8% per annum will apply. 

Justice Arif S. Doctor, deciding IPCA Laboratories Limited vs Anrose Pharma, found the defendant’s adoption of the impugned mark “plainly dishonest and without any due cause” and warned of a serious risk of deception in the pharmaceutical trade. 

“A perusal of the rival trademarks makes plain that they are virtually identical. The Defendant has not so much as even attempted to make out a case of honest or bona fide adoption of the mark ZEROVOL–P,” the court observed, noting that the defendant did not appear despite service of summons and the plaintiff’s evidence stood uncontroverted. 

IPCA, registered proprietor of ‘ZERODOL’, told the court it has used the mark since 2003 for pain management medicines, supported by invoices, sales turnover and promotional evidence. The company markets combinations including ZERODOL–P, ZERODOL–PT, ZERODOL–S, ZERODOL–MR and ZERODOL–TH. 

Recording the plaintiff’s goodwill and distinctiveness, the court said, “The evidence establishes that ZERODOL has acquired distinctiveness and is exclusively associated by the public and persons in the trade with the Plaintiff alone. Thus, the Plaintiff has established goodwill in its registered trademark ZERODOL.” 

On the stricter test applicable to medicinal products, the court held, “Given that the impugned mark is virtually identical to the Plaintiff’s registered trademark and both are used in respect of medicinal or pharmaceutical products, the likelihood of confusion is imminent. Thus, the use by the Defendant of the impugned trade mark would almost certainly result in the goods of the Defendant being passed off as those of the Plaintiff.” 

While IPCA sought ₹5,00,000 in punitive damages with 21% interest, the court declined damages for want of proof, “The Plaintiff has not led any evidence in support of the Plaintiffs claim for damages or loss suffered.” 

Justice Doctor said the suit was governed by the Commercial Courts Act, which mandates that costs ordinarily follow the event and be awarded to the successful party. He noted the defendant’s failure to appear or cross-examine and described the adoption of the mark as “dishonest and actuated in bad faith.” The judge added that, “the impugned products being medical products, a stricter order of costs must follow, as the Plaintiffs have profited at the potential risk to the public at large.” 

Accordingly, the suit was decreed in terms of prayer clauses (a), (b) and (d)—restraining the use of ‘ZEROVOL–P’/‘ZEROVOL’ or any mark deceptively similar to ‘ZERODOL’ and directing delivery up of all infringing materials for destruction. The operative order states: 

“The Defendant shall pay costs of ₹15,00,000/- to the Plaintiff within a period of 8 weeks from today. In the event, the costs are not paid within a period of 8 weeks from today, interest at the rate of 8% shall apply.”