Emergence colour Trademark in the Pharmaceutical Industry

Introduction

Section 2(zb) of the Trademarks Act of 1999 defines a "trademark" broadly, encompassing shape, packaging, and colour combinations, as long as they can be graphically displayed and identify products or services. This definition includes the concept of trade dress. Colors and colour schemes have a significant role in differentiating items on the market. A colour trademark is one that serves the trademark purpose of distinctively identifying the commercial origin of products and services by the use of at least one colour. In a number of countries, a single colour trademark can currently be registered. Pharmaceutical businesses are increasingly registering colour markings on pharmaceutical products to designate the source of such products as being a part of their brand.

The emergence of Colour Trademark in the Pharmaceutical Industry

All prescription drugs in tablet form were consistently white and spherical up to the middle of the nineteenth century. There were also OTC medicines in white or pastel colours. It was given colour in the 1960s. In 1975, soft gel capsules were first made available, and hues like lime green, red, and yellow quickly gained popularity. Today's pharmaceutical sector offers a wide variety of hues. The colours employed are solely for marketing purposes and have no bearing on the medication's effectiveness.

Since they address visual aspects by differentiating products from those of rivals, colour markings have grown to be an essential branding technique in the pharmaceutical sector. Pharmaceutical companies spend a lot of money on the most attractive and appealing trade dress and marks for every new drug they produce since colours are now used to establish brand images, communicate the personality of products, and distinguish them from competing brands.

How to register Colour marks: International perspective

Combinations of colours shall be acceptable for trademark registration under the TRIPS Agreement, however members may restrict registrability on distinctiveness developed through use and members may stipulate that signs must be clearly apparent as a requirement for registration. So, based on their acquired uniqueness and pictorial portrayal, nations can register colour trademarks.

Nonetheless, the Court made the point that a single hue may not be inherently distinctive and may only be protected if it has gained a secondary meaning via usage in connection with other descriptive marks or phrases. The two most crucial conditions for obtaining a trademark registration for a single colour mark are thus as follows:

1. The color must have acquired distinctiveness, and
2. The color must not be functional to the mark.

How to register Colour mark: The Indian Perspective

The pharmaceutical business in India has the most trademark registration requests of any industry. In

The following principles for registration of color markings are provided in the Manual of Trademarks, Practice, and Procedure 2015:

• The applicant should specify that the property is a colour trademark if they are claiming a trademark for a colour combination that is used in connection with their services, products, or packaging.

• A trademark will be regarded as a colour trademark if the application specifically states that it consists only of a colour combination. A specific combination of packaging colours that has come to be associated with the products of a single dealer may be registered and protected. Yet, it will be more challenging to prove that colour offers differentiation as an indication of origin in such instances if the colours are not used in a distinctive or particular pattern or arrangement.

• Strong proof should be needed to overturn a claim under Section 9(1)(a) of the Trademark Act of 1999, which forbids the registration of trademarks that lack uniqueness, whenever an exclusive right to colour is claimed.

• A single hue may be registrable as a trademark if it is unusually rare in a certain industry and is recognised as the mark of origin for a particular class of goods by both consumers and businesspeople.

Judicial Standings:

In AstraZeneca AB v. Dr. Reddy's Laboratories, Inc., (2015), a British pharmaceutical company named AstraZeneca sued Dr. Reddy's Laboratories, Inc. in Delaware over the generic Nexium brand's purple hue, which they dubbed "the purple pill." The generic tablet, which was likewise purple, was offered by Dr. Reddy's Laboratories in the US. This, according to AstraZeneca, was a serious violation of the contract between the two businesses. In order to successfully violate its purple medicine trademark registration, AstraZeneca said that the purple used was the exact same hue as the original medication. Eventually, Dr. Reddy's Laboratories was forced to reintroduce the blue generic pills.

In retaliation, Dr. Reddy filed a countersuit in a New Jersey court, stating that the filing of this action represented a material breach of an agreement reached between the two pharmaceutical corporations in 2011. Dr. Reddy is no longer responsible for the Nexium tablet in accordance with the conditions of the contract.

While the Delhi High Court acknowledged that even a single color can be registered as a mark in Colgate Palmolive Company v Anchor Health and Beauty Care Pvt Ltd (2003), the Court in Cipla Limited vs M.K. Pharmaceuticals (2008) made the diametrically opposite assertion that monopoly over colors cannot be claimed. The Court stated the following on the issue of pharmaceutical color marks:

“The medicines are not bought by colors by the customers. There are a thousand types of tablets available with Chemist for different ailments. No one goes to a chemist and asks for red, blue, orange, peach, or white color tablets. All medicines are purchased at the advice of Doctors and they are sold on prescription. Even those tablets readily available without a prescription, are known by their names. The distinctiveness of the medicines is in the name and not in the color and shape”.

Conclusion                                                                            

According to the research presented above, it is clear that registering colour markings in the pharmaceutical industry has various challenges on a national and international level. As colour markings are used more often in the pharmaceutical industry, it is crucial to adhere to trademark laws and procedures to ensure that the colour mark identifies the product's source, that the colour is not a functional component of the product, and that it has developed distinctiveness.

The consumer merely follows the doctor's directions and buys medicine as advised; the doctor makes the decision for them. So, to build their brand, pharmaceutical companies need to employ distinctive trademarks, particularly colour marks.