BY DEBARGHA MUKHERJEE
The Global Pandemic which has brought a world to a standstill. The world has witnessed a rise in the creation of counterfeit products in recent times especially in the medical domain viz. medicines, drugs, etc. This has caused distress to both the sellers and the buyers, thereby disrupting the supply chain. Counterfeit products are
unauthorized or fake replicas of an original product. They are more often than not created or produced to deceive the general mass, with an intent to take advantage of the superior value of a previously established creation. In other words, a counterfeit product is one which is envisioned to betray clienteles into purchasing a duplicitous merchandise by affixing someone else’s registered trademark or one that is illusorily alike to the said trademark on such product without authorization; in order to advance illicit profits by riding on the repute and goodwill associated with the registered trademark. For instance, shoes named ‘Adibas’ or ‘Abidas’ with a logo of three stripes can be often seen in crowded markets; such shoes can be called as counterfeiting products, which are fake replicas of the famous shoe making company ‘Adidas’. Apparently, Forbes reported that the Global Tech Giant Amazon had removed over a
million fake products claiming to cure the Corona Virus.
Counterfeiting in the Pharmaceutical sector is at a greatly double threat as there rises a looming threat to human life altogether. In the Pandemic, when every person is cautious about health and hygiene, few opportunistic people have tried to capitalise the situation. Recently, the Hon’ble Delhi High Court imposed a fine of Rupees One Lakh on a company named ‘Devtol’, which simply had an agenda to gain profits by riding on the impression of ‘Dettol’. It is common for an average person with an average power of recollection to get confused between the products, and thus,
counterfeiting products portray a great threat to the market. Similarly, a company ‘Purevell’ filed for registration under Class 5 (sanitizers), which was a dubious act copying ‘Purell’ in order to take gains of the pandemic crisis.
In India, ever since the Ministry of Consumer Affairs (MCA) stated hand-sanitizers and face masks as ‘essential commodities’, introducing a 20 lakh crore rupees economic relief package catering specifically to local manufacturing, numerous nascent companies jumped on this lucrative business opportunity to secure a footing in the industry. The Indian Trade Mark Offices saw a surge of approximately 350+ new applications in trademark filings for sanitizers just in two months (periods of March-May 2020)
Intellectual Property Legislations in India however cover the gamut of counterfeiting under several statutes which are as follows:
- In case of pharmaceutical drugs, if the process of manufacturing the drug or the product itself is identical then infringement relief as per the Patents Act, 1970 can be claimed.
- Sale/offer or expose for sale/issuance from the dispensary of any drug or medical preparation as a different drug or medical preparation will be punishable by way of imprisonment or fine or both as per Section 276 of the Indian Penal Code, 1860.
- Ss. 9B and 17B of the Drugs and Cosmetics Act, 1940 cover the aspect of imitation or spurious drugs, either manufactured or imported in India. According to the Act, marketing of spurious drugs is a cognizable and non-
bailable offense and can be punishable by way of imprisonment and fine, in addition to the seizure of such drugs. - S. 11(2)(n) and (u) of the Customs Act, 1962, read with the Intellectual Property Rights (Imported Goods) Enforcement Rules, 2007, import and export of goods which infringe upon the intellectual property of a right holder is prohibited and such infringing goods are liable to seizure.
- S. 29 read with Chapter XII of the Trademarks Act, 1999 entitles a right holder to institute a suit for infringement and passing off against counterfeit goods being sold under the proprietor’s trademark.
Apart from the legislation and while an injunction relief from the sale of infringing goods is an active step towards limiting Counterfeits, strong prominent digging to track the issue on grassroots levels is an important step. A survey conducted by OECD highlighted two aspects pursuant to the issue viz. rigorous screening & sanctions of shipments and enhanced effectiveness of penalties. Additionally, companies themselves shall have a check on such issues. They can use product identification viz. labels, marks, etc. to ensure brand segregation. They ought to conduct internal checks so as to ensure there lies no infringement of IP rules in the market. Frequent inspections in trade channels to determine and minimize the counterfeit risk are beneficial too.
All in all, counterfeiting is an alternative intermediate, eating the profits and privileges of bona fide organizations, producers, and creators; gaining from them, has indirectly compromised and endangered the health and security of a growing economy. Robust steps need to be taken by both the consumers and the retailers to address the pertinent issue acting in accordance with the legislation.