12 October 2020

Trademark infringement – Interlocutory injunction cannot be granted merely on basis of public interest

In a case where by an ad interim Order injunction was granted against manufacture and sale of APIXABID product, and where the appeal  against that ad interim order was pending in the Court, the Appellate Division Bench of the Delhi High Court has dismissed the interlocutory application by the defendant to permit them to sell 58,000 strips of the said medicine, manufactured by the applicant/defendant prior to the passing of the interim order.

The Court observed that the application has essentially sought allowing the appeal qua said number of strips, without pressing the merits of the appeal and without adjudication. It noted that such course of action is not permissible in law.

The contention that since the said medicine was required in post-recovery treatment of COVID-19, the defendant should be allowed to sell its stock in public interest, was also rejected. The Court held that merely on supposed public interest, a court cannot grant interlocutory injunction, unmindful of the existence of a prima facie case, or the considerations of balance of convenience and the irreparable loss.

It also noted that the interim order was still in place. Delhi High Court’s earlier decision in the case of NATCO Pharma Limited v. Bristol Myers Squibb Holdings Ireland Unlimited Company, was distinguished.

The Court in the case Indoco Remedies Ltd. v. Bristol Myers Squibb Holdings Ireland Unlimited Company also noted that no material was placed on record indicating shortage of the patented drug of the petitioner qua the requirements of the patients in need of the said drug, or of the product of the petitioner being prohibitively priced, or, not being reasonably affordable. It stated that the perception of shortage of APIXABAN, was only a perception.

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