Enforcement of intellectual property (IP) law remains the most debated subject in the matter of infringement of intellectual property rights (IPR). Such concern covers all subjects in the fields of patents, designs, trademarks and copyright. Judges frequently find against habitual or repeated infringers, and usually impose permanent injunctions and heavy costs orders against them. An injunction by itself is usually sufficient deterrent against violations of IPR. Infringement proceedings have, however, enabled judges not only to deter those who regularly abuse the rights of IP owners but also to make orders that benefit the public good in a practical way. Infringers in most cases of non-repeated abuse appear before the courts, and agree to submit to a decree. Courts are generally pragmatic and allow the parties to settle the matter with no, or only nominal, costs orders. The deterrent effect of the injunction will have fulfilled the purpose of the enforcement of IPR. Heavy costs orders are rare, except in cases where the financial benefits of a consent order are intended to go to the public, not to the patentee or IPR holder. These orders are made in cases where courts deal with repeated offenders and seek to go beyond the usual narrow approach to deterrence.
Safety before profits: Courts have also shown that they are ready to impose heavy costs in cases where defendants have commercially exploited their infringement of IPR in the manufacture of pharmaceuticals. In the recent case of Glenmark Pharmaceuticals Ltd v Galpha Laboratories Ltd and Ors, Bombay High Court stated that pharmaceutical companies manufacturing therapeutic products have a special duty of care towards consumers. The court made it clear that public health came before profit to the company. The court considered that the case was a perfect example of the reverse. Executives of such companies made decisions based on profit and financial goals rather than on the needs of public health.
The court adopted the ruling in Win-Medicare Pvt Ltd v Galpha Laboratories Ltd, where Justice Manmohan Singh in Delhi Court held that the conduct of the director of the same infringing company was “not only dishonest but also audacious and such which displays no regards to the authority/rule of law”.
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DPS Parmar is a senior consultant at LexOrbis.
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