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Bombay HC refuses to restrain SII from using ‘Covishield’ trademark, junks plea by Cutis Biotech

On January 4, 2021, Cutis Biotech filed an application before a District Court (Commercial Court) in Pune for a temporary injunction on Serum Institute and restraining it from using the trademark Covishield.

Written by Omkar Gokhale | Mumbai |
Updated: April 21, 2021 12:55:44 am
SII, CovishieldEmployees pack boxes containing vials of AstraZeneca's Covishield vaccine at the Serum Institute of India, Pune. (AP Photo)

The Bombay High Court on Tuesday dismissed a plea by Cutis Biotech seeking to restrain Serum Institute from using the ‘Covishield’ trademark.

The HC said the ‘Covishield’ vaccine is widely known and a temporary injunction will cause confusion and disruption in the vaccine administration programme.

A division bench of Justices Nitin M Jamdar and Justice C V Bhadang was hearing an appeal by Nanded-based Cutis Biotech.

Advocate Abhinav Chandrachud for Cutis submitted that his client on April 29, 2020 had filed an application for registration of trademark ‘Covishield’ for veterinary, Ayurvedic, allopathic, medicinal and pharmaceutical preparation and vitamins and dietary food supplements for humans and animals and the application is pending registration in the Trademark office. Whereas Serum Institute applied for registration of trademark ‘Covishield’ for its Covid-19 vaccine.

Chandrachud submitted that in May last year, as Cutis Biotech received products like antiseptic and disinfectant liquid bearing brand ‘Covishield’ from its manufacturers and the same were sold in various states, the trademark ‘Covishield’ has become a distinct product and the business of Cutis Biotech, which is a “prior user”, and the same cannot be used by Serum Institute. He said that the suppliers of Cutis Biotech have stopped providing goods, causing damage to its business.

However, senior advocate Birendra Saraf for Serum Institute submitted that his client had coined the trademark ‘Covishield’ in March 2020 and inter-office communication had begun on the same and sought dismissal of appeal.

In December 2020, Cutis Biotech had filed a trademark suit against Serum Institute in the Commercial Court in Pune seeking to restrain Serum and to maintain accounts regarding sale.

On January 4, 2021, Cutis Biotech filed an application before a District Court (Commercial Court) in Pune for a temporary injunction on Serum Institute and restraining it from using the trademark Covishield.

The district court noted that the products of both companies were used for different purposes and their visual appearances were different. Considering the implication of grant of injunction, the court had noted the pandemic situation and importance of vaccines and therefore rejected the interim application on January 30. Cutis Biotech then approached the HC.

After hearing submissions, the bench noted that neither Cutis Biotech nor Serum Institute have registration for the trademark. It observed, “Not only is there adequate evidence to show prior adoption and user, but Serum Institute has also continued its user without a break. Serum Institute has produced 60 million doses of the ‘Covishield’ vaccine per month and has supplied 48 million doses to the Government of India… the District Court was correct in holding that there will be no deception or likelihood of confusion in the products of Cutis Biotech and that of Serum Institute.”

Dismissing the appeal by Cutis, the HC held, “With these facts, the balance of convenience is not in favour of Cutis Biotech. Grant of injunction against Serum Institute would have a serious impact on its business.”

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