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IDMA urges DCGI to revise proposed 'Condition of Undertaking' to avoid duplication of brand names
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Shardul Nautiyal, Mumbai
May 25 , 2019
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The Indian Drug Manufacturers Association (IDMA) has urged the Drugs
Controller General of India (DCGI) to revise the proposed 'Condition of
Undertaking' which the pharma companies have to submit to the DCGI to
ensure that the brand name used by the owner or applicant for a
particular drug is not duplicated while granting licences or renewals.
A
draft notification issued by the DCGI recently proposes amendment to
Rules 71, 71A, 71B, 76 and 76A under Drugs and Cosmetics (D&C)
Rules, 1945 to introduce a Condition Of Undertaking which says “In case
the applicant intends to market the drug under a brand name or trade
name, the applicant shall furnish an undertaking to the licensing
authority that such or similar brand name or trade name is not already
in existence so that the brand name or the trade name to be used by the
applicant shall not lead to any confusion or deception in the market”.
In
its submission, the IDMA stated that such an undertaking is almost
impossible to guarantee as there could possibly be another company
marketing a drug under the same or similar brand name in some remote
part of the country. Registration of a brand name as a trademark prior
to use on any product is only optional.
There are unregistered
trademarks in use as brand names, which are often not possible to search
and information on which is not possible to access. As such, no
applicant can give a declaration as proposed. Similarly use of a
Trademark prior to registration is not mandatory in India and
alternatively Trademarks that are proposed to be used can also be
registered in India. The trademark authorities could at best confirm
ownership of the name if already registered with them, it said.
In
its submission to the DCGI, IDMA has suggested to revise the proposed
Condition of Undertaking and has stated, “In case the applicant intends
to market the drug under a brand name or trade name, the applicant shall
furnish an undertaking to the licensing authority that the application
for Trademark registration has been filed and to the best of his/her
knowledge such or similar brand name or trade name is not already in
existence”.
Applicants may further be directed to print the
symbol of trademark after the brand name to indicate that he/she has
applied for Trademark registration and/or is the owner of the brand
name. If the brand name is already registered with the Office of
Registrar of Trademarks then symbol of registration may be printed after
the brand name.
In spite of giving such an undertaking, the
manufacturers would still need to submit applications for grant of
product permission only under a proper name and subsequent to grant of
such permission they would be allowed to market their product under the
brand name or trade name, the IDMA said.
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