Comparative advertising in India – Historical background

Comparative advertising is a marketing strategy in which a company wants to show that its product or services is better than the competitors. However, the comparative advertising is not only used to promote a product or services, it has now become a common practice in political advertising as well. An example of comparative advertising is the side by side comparison of features between two or more products in the print media. However, the competitive advertising is very much controversial in nature.
The advertising companies and manufacturers were not very much interested on comparative advertising before 1970. According to them, there might have a risk of negative impact of advertising. Such type of advertising may invite unwanted legal challenges from the competitors and the competitors may gather public sympathy as victims by counter advertising. However, from the beginning of the 1971, many countries began to encourage the comparative advertising mentioning that comparative advertising is an important tool for providing the distinctive information about various attributes of same product of different brands. The government of many countries began to formulate and enact the legislation to protect the manufacturers from disparagement that came from the competitors. The new laws encouraged the companies to publish comparative advertising. However, still now, the amount of comparative advertising is small.
Like all other countries, Government of India also took some measures to encourage the comparative advertising. The most important step was the amendment of “The Monopolies and Restrictive Trade Practices”
(MRTP) Act, 1969″. In 1984, the Union Government introduced a new chapter on unfair trade practices. In the original act of 1969, there was no specific provision for restricting many categories of unfair trade practices, like misleading and unscrupulous advertising. The 1984 amendment clearly mentioned that any representation which ‘gives false or misleading facts disparaging the goods, services or trade of another person’ to be an unfair trade practice. In some advertisements, competitive products are mentioned as ordinary products without mentioning the names of any specific product. The amendment mentioned that “other ordinary products” term in advertisements will be treated as all the rival products excluding the advertised one in the court of law.
The amendment also clarified another complex issue. When the disparaging occurred on the basis of false technical facts, a detailed scientific and technical analysis is required to establish the fact. In 1984, our legal system was not so equipped to dispose the technical and scientific matters within a short period. The process was lengthy and it took a long time to settle the dispute. In that case, the plaintiff could appeal for an injunction on publishing the advertising. The court generally granted the interim injunction. However, the advertising already did the damage of the competitive product. In that case, the amendment made a provision of compensation for the loss or damage. The law also set the guidelines of computing the amount of loss or damage.
After the amendment, many cases were filed in the various courts of India. Some of important cases are Regaul vs Ujala, Colgate vs Vicco, Saffola vs Fortune rice band oil and Rin vs Tide. The historic judgments in these cases attracted the legal professionals across the world.
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Delhi High Court dismisses the appeal of Marico Limited in the case of comparative advertising case Marico Limited vs Adani Wilmar Limited.

Marico Limited filed two suits seeking permanent injunction restraining Adani Wilmar Limited from broadcasting, publishing and printing the advertisement of its product “Fortune”. Both the companies are the manufacturers of rice bran oil. Saffola is the brand name of the plaintiff’s product and the brand name of the defender is “Fortune”. The plaintiff argued that the advertisement of the defendant disparaged the goodwill and reputation of Saffola. The suite is a unique example of controversial comparative advertising
The plaintiff raised objections to the following claims and statements issued by the “Fortune” rice band oil in print and visual media.

• The healthiest cooking oil of the world.
  
• 100% RBO being 100% healthy.
• Healthier than other cooking oils.(It means it is healthier than Saffola brand rice brand oil)
• The product is good for not only heart; it is also good for cholesterol immunity, skin and hormones.

The plaintiff claimed that

• The advertisings are factually incorrect, vague and misleading.
  
• The claims were not scientifically or technically established.
• The advertisement was comparative in nature and it intentionally puffed up the competitor’s product.
• The reputation and the standing of the plaintiff were damaged due to the unfair and disparaging advertisement.
• The claims of the defendant violated S. 24 of the Food Safety and Standards Act, 2006.

The senior counsel of the plaintiff raised the following points in his arguments:-
The claim of highest Oryzanol content in Fortune oil is a misleading fact. Under the Food Act and the Notifications It is mandatory to have Oryzanol content not less than 1% in rice ban oil. As Saffola brand of the plaintiff is the mix of rice ban and other cooking oils, it also contains the same proportion of Oryzanol. No document was submitted by the defender in support of the claim that Oryzanol reduces the chance of cancer.
The claims of health benefits by defendants are derived from the popular beliefs or newspapers. There is no scientific evaluation of the claim.
The defendant produced a paper submitted by Mr. Michihiro Sugano and Mr. Etsuko Tsuji titled RBO and Cholesterol Metabolism presented at VIIth Asian Conference of Nutrition it is shown that the finding is of blend of 7 parts of RBO with 3 parts of Safflower Oil unexpectedly enhancing the cholesterol-lowering potential of RBO. Therefore, the claim “100% RBO being 100% healthy” is also false and misleading.
The plaintiff also informed that they also lodged a complaint against the advertisement with the Advertising Council of India and which complaint was partly allowed.
The senior counsel of defendant (Adani Wilmar Ltd.) contended that the said advertising only highlighted the qualities of their product Fortune without disparaging the goodwill of plaintiff’s product. In support of their claim, “100% RBO being 100% healthy”, they produced the documents three other RBOs namely ‘Ricela’, ‘Nutrela’ and ‘California Rice Oil Company’ which also claimed that the RBO is the healthiest oil. He also argued that the plaintiff has accused only the defendant, said nothing against the other three.
The division bench said that the court did not get any evidence of denigrating the plaintiff product in its advertising. The advertising informed the consumers that Oryzanol content in Saffola is less than Fortune. The plaintiff did not dispute the cholesterol reducing ability of Oryzanol or presence of Oryzanol in Saffola and Fortune . The court also observed that the advertisement was about showing that the defendant’s product was sufficient to meet the requirements of human body.
The court dismissed the appeal of defendant on the basis of its observation. Court also gave permission to Marico for withdrawing the appeal on 18th. April, 2013. Marico withdrew its appeal on 29th. April, 2013.
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US Business Associations urge Obama to take corrective measure for fair trade with India

The captains of seventeen leading US industry associations including including US Chamber of Commerce sent a letter to US President Obama urging him to take effective steps on discriminatory
behavior of Government of India (GOI) with the US business communities. The associations represent the industries from manufacturing to agricultural services. They mentioned that the present Indian
trade policy will jeopardize US exports, scope of domestic jobs. The signatories were also concerned about Intellectual Property Laws of India.
The policy makers of GOI have engaged in persistent pattern of discriminations providing benefits to domestic business of India at the expense of American jobs. Indian courts and patent offices have
imposed arbitrary market restrictions on medical devices and revoked the patents for a dozen of life saving drugs manufactured by multinational Pharmaceutical Companies ignoring the international norms
of World Intellectual Property Organization (WIPO).
These actions and others constitute a disturbing trend that may continue and even expand to other products, sectors, and countries. Already many developed countries are considering to follow the
footsteps of India. If that is done, global economic harmony will be destroyed and the common people will be deprived from their rights to obtain the quality goods and services. The signatories urged the president to start to start the dialogue with the Indian counterpart to remind GOI about their commitments to WIPO and WTO.
Let us analyze the allegations made by the industrial houses. How far is it true? They have not provided any specific examples of international norms violation. However, we can assume that some
recent rulings by Intellectual Property Appellate Board (IPAB) of India sparked the anger among the European and US business communities. Swiss Pharma Novartis loses patent bid of Gilvec, dismissal of Bayer appeal against Natco and revocation of Pfizer / Sugen’s patent on the drug Sunitinib by Cipla are some recent developments that created a stir among the multinational pharma companies. Section 3(d) of Patent Act was was applied in all the above cases. Multinational pharmaceutical companies expressed their dissatisfaction about section 3(d) section of patent law from the date of its modification in 2005.

What is section 3(d) of Patent law. The Act reads as “The mere discovery of a new form of a known substance which does not result in the enhancement of the known efficacy of that substance or the
mere discovery of any new property or new use for a known substance or of the mere use of a known process, machine or apparatus unless such known process results in a new product or employs at least
one new reactant”. Western countries have acquired the majority of the patents and earn extraordinary money monopolizing them. They follow an unethical strategy to protect and extend the life of the
patent. That is called “ever greening” of the patent. “Patent ever greening” is a potentially pejorative term that generally refers to the strategy of obtaining multiple patents that cover different aspects of
the same product, typically by obtaining patents on improved versions of existing products. Using of this technique is common in the pharmaceutical industries to take advantages of extending the market
monopoly of a specific product beyond its legitimate period. Modification of section 3(d) of patent law in 2005, has reduced the scope of extending the time limit. Various independent international health
workers organizations have supported the the policy of Indian Government. They have criticized the big pharmaceutical companies for making a huge profit patenting of slight modification or improvement
on previously patented technology.
However, a meeting between the Indian Parliamentary delegates and US lawmakers in this week painted a highly positive picture of bilateral relation and there is no indication of battle over IP
rights.
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.

Frito-Lay North America Loses the Patent, Trademark Infringement Case Against Medallion Foods

Frito-Lay North America filed a suite against Medallion Foods & Ralcop Holdings Corporation on the ground of following issues.
Allegations

1. The bowl shaped tortilla chips made by defendant Medallion Foods and its associate Ralcop Holdings Corporation infringe on the trademarks for similar shaped chips manufactured by the
   plaintiff.


2. The lawsuit is brought to restrain the defendant from trademark infringement, trade dress infringement, unfair competition, and dilution under United States Trademark Act. Plaintiff invested a
   large amount in unique designed product TOSTITOS SCOOPS! and the products have now become very much popular among the customers. Defendani's bowl shaped tortilla chips and its packages are
   imitation of popular TOSTITOS SCOOPS! tortila chips. The defendant has done it intentionally. Plaintiff requested repeatedly the defendant to stop manufacturing and marketing their copycat chips.
   They did not stop manufacturing and marketing the products. The Frito-Lay customers are the worst sufferers for the defendant's unlawful activities. Therefore, the plaintiff seek the court's intervention to
   stop this type of unlawful marketing strategy of Medallion Foods.

Background

1. 
   Frito-Lay is using the bowel shaped design of TOSTITOS SCOOPS! since early 2001. The plaintiff registered the trademark of for the multi-sided, bowl shaped design of the TOSTITOS
   SCOOPS! tortilla chip under the registration no U.S. Reg. 2,766,278 from the federal agency.


2. The bowl shaped design of tortilla chip created a distinctiveness from the other same type of products.


3. Frito-Lay spent millions of dollars in advertisement to popularize the bowl shaped design of TOSTITOS SCOOPS! brand tortilla chips. Frito-Lay sells tens of millions of dollars per year of
   TOSTITOS SCOOPS! tortilla chips.


4. Apart from the trademark, Plaintiff obtained the patent on the manufacturing process unique bowl shaped tortilla chips from US Patent Office. The various
   patents were issued from July,2002 to October,2003
.

5. After more than a decade, defendant began to sell tortilla chips imitating the shape and design of TOSTITOS SCOOPS! Brand of plaintiff. They also copycat the manufacturing process of the plaintiff's product.
   


6. According to the informations, the defendants' products are sold through the same outlets in the same aisles at same prices as as Frito-Lay's products. Defendant's marketing strategy is damaging the
   reputation of the plaintiff. Moreover, the customers of the plaintiff are confused by this tactice.


7. In this context, Plaintiff claimed 4.5 million dollars compensation for the damage of their reputation and and an injunction against Ralcorp Holdings, Inc. and its subsidiary Medallion Foods, Inc. for
   infringement of intellectual property and infractions under Texas law.


8. The court directed the defendant to show clear and convincing evidence that supports the plaintiff's design and manufacturing process can be used publicly. Defendants were unable to produce the
   evidence. Therefore, the court granted the plaintiff's motion.


9. Although, the summary judgement was decided on January 2013, the trial began in February 2013. In the trial process, Frito-Lay complained that defendant infringed its trade dress rights to scoop
   design and the chip packaging also.

Conclution

One of the requirements of the trade dress is that plaintiff has to produce the concrete evidence in support of consumer confusion about the source of product. The court was not satisfied with the
evidence of Frito-Lay. Frito-Lay demands a trial by jury on all issues triable of right by a jury Pursuant to Rule 38 of the Federal Rules of Civil Procedure. The court granted it.


A 10 person jury in Texas go through the 40-pages document and came to the conclusion that the bowl-shaped tortilla chips made by Ralcorp Holdings do not infringe on trademarks for similar-shaped chips produced by Frito-Lay North America.


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    Missing of trademark registration file from TMR office

In the course of ongoing legal battle between Haldiram (India) Pvt. Ltd of Delhi and a Kolkata based company “Haldiram Bhujiwala”, a sensational information was revealed. The petitioner Haldiram (India) Pvt. Ltd, requested “Trade Mark Registration Office” (TMR Office) to provide them two sets of certified copies related to registration of trademark no. 285062 from. The registrar of the office informed the petitioner that the said files were not traceable. The petitioner filed a case in Delhi court against “TMR” alleging that the files were deliberately misplaced, destroyed or hidden with the help of some dishonest “TMR” officials.
Justice S Muralidhar directed the Department of Industrial Policy and Promotion (DIPP), Ministry of Commerce and Industry to lodge an F.I.R and take an immediate step to find out the missing files. He also mentioned that the situation is alarming. TMR office filed an affidavit stating that 44,000 files (relating to the registration of trademarks) were lost from its five branches in Mumbai, Delhi, Chennai, Kolkata and Chennai and the officials were not aware about the fact since 2006. TMR officials said that these files were missing at the time of moving it from Mumbai to other centers. It was embarrassing to the Ministry of Commerce and Industry. The missing of enormous files created a shockwave throughout the country. The TMR officials and the concerned ministry could not avoid their responsibilities just filing an affidavit. Various legal organizations and the trademark owners demanded stern action against the culprits.
Under the pressure of various circles, Ministry of Commerce and Industry asked the concerned department to take stern action against the officials who are responsible for the negligence. DIPP constituted an investigation committee headed by Ms. Chandni Raina, Director of the DIPP. Ms Raina started an internal investigation to trace out the missing files and fix the responsibilities for negligence. Within few weeks, the office of the Controller of Patents, Designs and Trade Marks issued a notice claiming that the number of missing files are only 8183 that is only about 1% of total files related to registration.
DIPP informed Prashant Reddy, an eminent advocate on Intellectual Property Rights, in response to his queries under “Rights to Information Act, 2005”, no administrative or criminal action was taken against any staff of TMR was taken. Nobody was identified as responsible for missing files. However, DIPP assured the court that they would file FIR if they found any irregularities in the registration process of trademark. The investigation committee did not find anyone who was guilty in this matter. DIPP filed a FIR against unknown person for the missing files. It is another example of saving the corrupt officers by the ministry.
They also submitted a comprehensive action plan of record keeping. The following steps were taken by TMR to implement scientific record keeping.
• Preparation a list of all the live trademark files and keep the files serial and date wise to get easy access of the specific file.
• Preparation of branch wise missing files.
• Quarterly audit of all the trade mark registrations in all the trademark registry offices.
• Online registration of trademark will be mandatory from a specific cut-off date.
The positive side of the incident is that Trademark office has reconstructed most of the missing files within a short period.
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Trademark Infringement case between Sabmiller and Som Distilleries & Breweries Limited

   

Sabmiller India Limited files a suite of trademark infringement against Som Distilleries & Breweries Limited in Bombay High Court. Dr. Virendra V. Tulzapurkar, along with Mr. Himanshu Kane with Mr. Hiren Kamod, the learned advocates of the plaintiff informed the court the following facts.

Allegations against the defendant

 On 19^th February, 2009, the plaintiff applied for registration of its trademark "SABMiller India – SABMILLER INDIA" under the Trade Marks Act, 1999 ("the Act") under Application No. 1787321 in Class­21 in respect of glass bottles and in Class­32 in respect of beers; mineral and aerated waters and other non­alcoholic drinks; fruit drinks, fruit juices, syrups and other preparations for making beverages.

    The plaintiff conceived a design of glass bottle for selling beer. The company applied for registration of the said design under the Designs Act-2000 in class 09-01 and the design was registered 15th January, 2009 under No. 223479. Meanwhile, the plaintiff changed its name from SabMiller to SKOL Breweries Limited.

    The plaintiff started marketing its beer in India after January 2010. The company used the bottle that was designed under No. 223479. The bottles were also inscribed with the Company trade mark SABMILLER INDIA.

    In the second week of January 2012, the plaintiff found that the defendant was filling and distributing beer into recycled bottle instead of brand new bottles. The beer bottles used by the defendants are fully identical with the design of the bottle that was registered by the plaintiff under design no. 223479.

    Not only that, the defendant was embossing the exactly same logo SABMILLER INDIA that was the registered trademark of the plaintiff.

 History of proceedings  

Therefore, the plaintiff filed a suit against the defendant in the District court of Raison in Madhya Pradesh praying for permanent injunction restraining from infringing the defendant's registered design and trademark. The court issued an interim injunction on 3^rd February, restraining the defendant from using the said designs and trademark until the next hearing. The interim injunction was extended time to time. The case was transferred to the 3^rd. Additional District Judge and the court vacated the interim injunction on 3^rd. July, 2012.

    Thereafter, the plaintiff appealed before the High Court of Madhya Pradesh, Jabalpur against the said order. On 9^th August 2012, M.P High Court discarded the order by an interim injunction. The injunction was extended from time to time till 18^th December 2012. However, Madhya Pradesh High Court dismissed the plaintiff's appeal in final verdict.

The plaintiff filed a new suit before Bombay High Court for infringement of the trademark “SABMiller India - SABMILLER INDIA”.

Arguments of Defense Counsel

The claim should not be raised again as M.P. High Court already dismissed the plaintiff’s verdict.

The use of the recycled bottle is a common practice in the trade circle. The plaintiff also uses the recycled bottle of Kingfisher. Therefore, it is not a wrongful work.

Plaintiff is guilty of suppression of facts of using recycled Kingfisher bottles in the past.

Defendant is entitled to continue using the registered trade mark of the Plaintiff because such use is protected by the provisions of Section 30 (1) of the Act and

also in view of the provisions of Section   30 (2) of the Act. 

Verdict

The Bombay High Court ultimately gave the following verdict in favor of the plaintiff.

“The Defendant is guilty of infringing the Plaintiff's trade mark SABMiller India/SABMILLER INDIA”. 

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IPAB Rejects the Claim of "Haldiram Bhujiwala" Logo Claimed by Kolkata Based Company.

The Intellectual Property Appellate Board (IPAB) has ordered the Register of Trademark to cancel the v-shaped trademark of "Haldiram Bhujiwala", a Kolkata based company. The farm manufactures the north Indian sweets and snacks and sells it through different outlets using the v-shaped logo in the packets. The order was the outcome of a petition filed by a Delhi based Company Haldiram (India) Pvt. Ltd. The order will end a long-term family dispute claiming the ownership of the name "Haldiram Bhujiawala" and its v-shaped logo.
To understand the merit of the case, you have to go through the historical background of the family feud. Ganga Bishan, the founder of the said company was manufacturing and selling sweets, salted snacks and papad and other similar type of food products since 1942. He established and registered the Company at Delhi. He conceived the idea of the trademark as represented in a V-shaped logo from the very beginning. Haldiram was the nickname of Ganga Bishan. He was granted the trademark of the logo on 29th December 1972 vide application no. 285062 made with the Registrar of Trade Marks, New Delhi for grant of registration of the trademark. In 1956, Mr. Rameshwar Lal and Mr. Moolchand, the sons of Ganga Bishan joined the company and became partners. Rameshwar Lal retired from the company in 1958 and shifted at Kolkata.
Rameshwar started the same type of business in Kolkata. He requested his father granting him permission for using v-shaped logo for his products. His father permitted him to use the logo within Kolkata jurisdiction only. The company "Haldiram Bhujiwala" was dissolved in 1974. Moolchand acquired the exclusive rights of the logo throughout the country excluding West Bengal. Mrs. Kamala Devi, wife of Rameshwar Lal, was permitted to do the business only in West Bengal jurisdiction. In 1977, Rameshwar Lal and his son Prabhushankar Agarwal filed an application for registration of "Haldiram Bhujiwala" trademark which they were using since 1958. They were granted the trademark no. 330375 that was identical to the previous trademark no. 285062. The incident called in question the validity of the original trademark granted to Late Ganga Bishan. Legal heirs of Moolchand challenged the registration of the trademark no. 330375 in IPAB. The advocates of M/s. Haldiram (India) Private Limited contended that registration of the above trademark was made by a false claim of proprietorship since 1958 made by the respondents. The respondent, Rameshwar Lal was one of the partners of "Haldiram Bhujiwala". Therefore, he was very much acquainted with the v-shaped trademark of the company. It is a deliberate attempt of suppression and non-disclosure of facts for personal financial gains.
However, Rameshwar Lal and his son refuted the allegation mentioning that they were using the v-shaped logo since 1958; they are the rightful owner of the logo. They also contended that the said logo had become popular throughout India due to their extensive, continuous and uninterrupted effort. Therefore, they have applied for the registration of the said trademark under no. 330375.
Ms. S. Usha, Vice-Chairman and V. Ravi, Technical Member of the Board, dismissed the contentions of the respondents. They said that the respondents could not produce the sufficient evidence in favor of claiming the ownership of the said trademark.
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Threat to patent system and its solution

Patent laws protect the innovators to gain the financial benefits from their inventions. It also prevents others from getting monetary advantages using the unique ideas of others. The Word ‘Patent” is the derivative of the Latin term 'litterae patentes' which means an open letter. This type of open letter were conferred the rights of the inventors with a royal seal of kingdom. The seal was a proof king’s approval to the inventor’s rights.
The modern concept of patent law and other legal protection of Intellectual properties came after the industrial revolution in Europe. The industrial revolution opened the floodgates of new inventions. Inventors demanded the protection the rights of their unique ideas. The leading industrial countries realized the needs of formulating comprehensive patent laws to protect the financial interest of inventors. In the reign of Queen Anne, the law officers of the Crown established as a condition of grant that "the patentee must by an instrument in writing describe and ascertain the nature of the invention and the manner in which it is to be performed". United States of America introduced the first modern patent law in 1790 and France introduced it in 1791. After the development of transport system, the movement of goods from one country to another created a threat to the protection of intellectual property rights. Then the protection of IP became evident to resist the stealing the idea of one country by another country. Paris Convention of 1983 took a bold initiative to internationalize the protection of IP rights. The convention devised a mechanism to facilitate protection of IP rights simultaneously in the member countries without any loss in the priority date. Only 11 countries signed in the first Paris Convention, 173 countries have now become the members of Paris Convention (WIPO, November, 2008).
However, the misuse of the patent law has now covered a dark cloud in the utility of patent law. A section of mischievous people and organizations are extracting money from the inventors using the loopholes of the patent system. Patent trollis one of the most notorious designs for acquiring money filling a lawsuit against the inventors. On the other hand, pharmaceutical and other companies are selling the monopolized patented essential commodities at an exorbitant rate. In this way, they are exploiting the common people. Large number of vague patents is hindering the scope of new creations. Therefore, the people are now demanding the drastic reformation of the patent system.
Minute MBA, a renowned MBA School has suggested three options to fix the problem.

• Abolish patent system: Michele Boldrin and David K. Levine, two research fellows of St. Louis Federal Reserve argued, “There is no evidence that patents improve the productivity”. On the other hand, the prolonged legal battle on infringement of patents is obstructing the new inventions. Abolition of the system will save the wastage of time and money.
• Tighten the scope of what is an invention: In last year, the court ordered Samsung to pay $ 1billion to Apple. Apple started a legal proceeding against Samsung claiming that the defender ripped off the I-Phone of respondent. What was the infringement? Samsung copied the rectangular design of Apple I-Phone. Does the shape and size fall into the category of unique idea?
• Recruit more specialists and judges: Every patent application should be verified by expert panels. Patents are issued to the unique ideas. If it is not verified by the specialists, the non-innovative ideas can get the patent due to the ignorance of the patent officers. Similarly, the non technical judge cannot understand the cleverly plotted infringement case for extracting money from the genuine inventor.

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The pros and cons of Indian Drugs (Prices Control) Order 2013

Overview:The Department of Pharmaceutical in the Union Ministry of Chemicals and Fertilizers gazetted the Drugs Prices (Control) Order 2013 on May 16th, 2013. The new policy will replace the previous drug pricing policy of 1995. It will be effective from 1st July, 2013. The new order will control the pricing of 348 drug formulations mentioned in the list of National List of Essential Medicines (NLEM), 2011 instead of 74 drugs or formulations listed in the previous policy. The 348 drugs are defined in terms of specified strength. Actually, about 650 drugs in pharmaceutical selves under 27 therapeutic categories will come under the scanner of the price control authority. The new policy has authorized the National Pharmaceutical Pricing Authority (NPPA) to control the prices of the listed drugs. Anti-cancer drugs including the much talked about Zidovudine-Lamivudine-Nevirapine, Imatinib, Carboplatin, Dacarbazine, Daunorubicn, Oxaliplatin and Chlorambucil are some of the drugs that have been included in the new list.
Background: The Union Government has taken a long time to formulate the new drug policy due to internal conflict between the ministries of health and chemical and fertilizers. In the last meeting, Ministry of Finance also raised some objections. The Government was forced to issue the new policy due to a stern notification from Supreme Court. The patented drugs will not come under the recent policy. A Government appointed committee recommended bringing the patented drugs under price control policy. The government did not accept the proposal. However, government has ensured that they will make their decision on this issue within a short period.
Pricing Mechanism: In the previous regime, the pricing of the drugs were fixed on the basis of manufacturing costs declared by the drug manufacturers. Now, ceiling prices would be calculated taking simple average of the sum of prices of all the drug brands and genetic versions of the medicines having a market share equal to or more than 1%. The calculated result will be defined as "Average price to retailer". If we assume the value of the average price of the retailer is X, then the ceiling price would be
Z=X.(1+Y/100), assuming that
Z=Ceiling price
X=Average price
Y= % Margin to retailer and its value =16
The retail price of the new drug that is not available in the domestic market will be calculated on the basis of Pharmacoeconomic. It is a scientific process of drug pricing comparing the value of one drug with another drug or therapy of the same group.

Reaction: The new policy received a warm welcome from all sections of people and health activists. Indian drug manufacturers also hailed the decision. According to experts, the new policy reduces the price of the essential drugs from 30% to 60% depending on the variation of the drugs. As most of the Indian patients spend their own money for their treatment, they will get a great relief by the new drug policy. However, health activists are sceptical about the utility of the bill. In their opinion, many essential drugs were not listed in "NLEM". The list was last updated in 2003. They demanded immediate revision of the list. They also said that the pricing on the basis manufacturing cost reduces the prices of drug. They have cited the example recent ruling of the court in the case of Cipla vs Novartis regarding cancer drug Glivec.
Conclusion: We think that the new drug pricing is an initial step to provide a better healthcare facility to the people of India. For more information, you may contact Lex Protector.

Delhi High Court dismisses the appeal of Marico Limited in the case of comparative advertising case Marico Limited vs Adani Wilmar Limited.

Marico Limited filed two suits seeking permanent injunction restraining Adani Wilmar Limited from broadcasting, publishing and printing the advertisement of its product “Fortune”. Both the companies are the manufacturers of rice bran oil. Saffola is the brand name of the plaintiff’s product and the brand name of the defender is “Fortune”. The plaintiff argued that the advertisement of the defendant disparaged the goodwill and reputation of Saffola. The suite is a unique example of controversial comparative advertising
The plaintiff raised objections to the following claims and statements issued by the “Fortune” rice band oil in print and visual media.

• The healthiest cooking oil of the world.
  
• 100% RBO being 100% healthy.
• Healthier than other cooking oils.(It means it is healthier than Saffola brand rice brand oil)
• The product is good for not only heart; it is also good for cholesterol immunity, skin and hormones.

The plaintiff claimed that

• The advertisings are factually incorrect, vague and misleading.
  
• The claims were not scientifically or technically established.
• The advertisement was comparative in nature and it intentionally puffed up the competitor’s product.
• The reputation and the standing of the plaintiff were damaged due to the unfair and disparaging advertisement.
• The claims of the defendant violated S. 24 of the Food Safety and Standards Act, 2006.

The senior counsel of the plaintiff raised the following points in his arguments:-
The claim of highest Oryzanol content in Fortune oil is a misleading fact. Under the Food Act and the Notifications It is mandatory to have Oryzanol content not less than 1% in rice ban oil. As Saffola brand of the plaintiff is the mix of rice ban and other cooking oils, it also contains the same proportion of Oryzanol. No document was submitted by the defender in support of the claim that Oryzanol reduces the chance of cancer.
The claims of health benefits by defendants are derived from the popular beliefs or newspapers. There is no scientific evaluation of the claim.
The defendant produced a paper submitted by Mr. Michihiro Sugano and Mr. Etsuko Tsuji titled RBO and Cholesterol Metabolism presented at VIIth Asian Conference of Nutrition it is shown that the finding is of blend of 7 parts of RBO with 3 parts of Safflower Oil unexpectedly enhancing the cholesterol-lowering potential of RBO. Therefore, the claim “100% RBO being 100% healthy” is also false and misleading.
The plaintiff also informed that they also lodged a complaint against the advertisement with the Advertising Council of India and which complaint was partly allowed.
The senior counsel of defendant (Adani Wilmar Ltd.) contended that the said advertising only highlighted the qualities of their product Fortune without disparaging the goodwill of plaintiff’s product. In support of their claim, “100% RBO being 100% healthy”, they produced the documents three other RBOs namely ‘Ricela’, ‘Nutrela’ and ‘California Rice Oil Company’ which also claimed that the RBO is the healthiest oil. He also argued that the plaintiff has accused only the defendant, said nothing against the other three.
The division bench said that the court did not get any evidence of denigrating the plaintiff product in its advertising. The advertising informed the consumers that Oryzanol content in Saffola is less than Fortune. The plaintiff did not dispute the cholesterol reducing ability of Oryzanol or presence of Oryzanol in Saffola and Fortune . The court also observed that the advertisement was about showing that the defendant’s product was sufficient to meet the requirements of human body.
The court dismissed the appeal of defendant on the basis of its observation. Court also gave permission to Marico for withdrawing the appeal on 18th. April, 2013. Marico withdrew its appeal on 29th. April, 2013.
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