Bombay HC rejects appeal against use of trademark Covishield
The Bombay high court (HC) on Tuesday refused to interfere with the district court order, allowing Serum Institute of India (SII) to use the name ‘Covishield’ for the vaccine manufactured by it. Cutis Biotech had sought injunction on the name’s use, as it too had a similar name for a drug. But as the district court had refused to grant the injunction, Cutis approached HC.
A division bench of HC justice Nitin Jamdar and justice CV Bhadang, however, held that as SII’s vaccine was already well-known and neither company owned the trademark, it was not inclined to grant the prayer of Cutis.
The bench, while hearing an appeal filed by Cutis Biotech, was informed by advocates Dr Abhinav Chandrachud and Aditya Soni that the company had applied for the trademark Covishield under the Trademark Act, 1999, last year on April 29. The advocates submitted that on January 4, Cutis had initiated a trademark suit against SII at the Pune commercial court, and hence, till the outcome of the suit was decided, they had filed an interim application seeking an injunction against SII from using the name.
However, the district court had refused to grant the injunction as SII had started using manufacturing the vaccines by the Covisheld, following which Cutis approached HC.
Senior advocate Dr Birendra Saraf for SII submitted that the company on June 6, 2020, had applied for the registration of trademark ‘Covishield’ under application no 4522244 for vaccine under Class-5. It had also applied for other variants. The company had sought permission to carry out tests for the coronavirus drug from various authorities, and on December 10, 2020, the Union health ministry published the Covid-19 vaccine procedure, which referred to the trademark of SII as ‘Covishield’.
After perusing the proceedings of the interim application heard by the district court, the HC bench noted that neither Cutis Biotech nor SII had a registration for the trademark ‘Covishield’. Thus, the grievance of Cutis Biotech would be termed as an allegation of passing off by SII.
The district court further noted that as the products of both the companies were different, there was no chance of confusion in the minds of the public.
“The court noted the situation brought about by the pandemic and the importance of the vaccine for the general public. The district court, by the impugned order dated 30 January 2021, rejected the interim application,” the HC bench, while dwelling on the implications of the injunction, observed.
In light of this, HC observed, “That ‘Covishield’ is a vaccine to counter coronavirus is now widely known. A temporary injunction directing SII to discontinue the use of mark ‘Covishield’ for its vaccine will cause confusion and disruption in the vaccine administration programme of the state. In this case, thus, the grant of an injunction would have large-scale ramifications traversing beyond the parties to the suit.”
While dismissing the appeal, the bench noted, “The discretion used by the learned district judge in refusing to grant an injunction is not arbitrary or perverse. Even if the evidence was to be looked at in the first instance, no case is made out for grant of any relief.”