A pharmaceutical company that sells HIV/Aids, diabetes and hypertension drugs has been given two weeks to recall its products from the market.
The High Court last week directed Lords Healthcare Ltd to quarantine and recall products covered by the drug registration certificates held by Cipla Ltd in the local market.
Justice David Majanja also ordered the company to stop advertising, distributing and manufacturing medicines, including hypertensive anti-retrovirals
That was after three pharmaceutical giants – Lords Healthcare Ltd, Cipla Ltd and Surgipharm Ltd – went to court fighting copyright battles and accusing one another of selling drugs with similar trademarks.
Lords Healthcare Ltd’s dispute with Cipla concerned the manufacture and distribution of Amlocip NB, Amzart 5, Itorcip, Lozart 50, Lozart H, Ocemax 200 DT, Terbisil 250 and other drugs.
Cipla and Lords claimed ownership of the drugs.
The relationship between the two companies started in the 1980s when they agreed to work together in making and distributing drugs. They also signed a representative deal.
The relation later deteriorated to the point of filing of the suits.
Justice Majanja said the drugs were validly owned by Cipla while rejecting Lords’ argument that the registration certificates were joint ownership.
He ruled that Lords violated the fundamental right of Cipla Ltd to hold and own property of any kind under Article 40 of Kenya’s Constitution.
“From the certificates dated May 8, 2018, the drugs are registered under Cipla as the manufacturer, with the business address being under the care of Lords,” the judge said.
“Cipla is the manufacturer and owner of the drugs. I do not see any reason to depart from this finding. I reject Lords Ltd’s argument that the registration certificates bestowed joint ownership of the drugs as nothing would have been easier than for the Pharmacy and Poisons Board (PPB) to state so.”
He said the fact that Lords paid for the application fee did not accord it ownership of the drugs as it was doing so in its capacity as an agent/local technical representative of Cipla.
“I, therefore, find and hold that the disputed drugs – Amlocip NB, Amzart 5, Itorcip, Lozart, Lozart h and Ocemax 200 DT – are validly owned by Cipla,” Justice Majanja added.
He restrained Lords Healthcare Ltd from importing, trading in, advertising or marketing any products covered by the drug registration certificates held by Cipla Ltd.
“Having found that Cipla Ltd is the duly registered owner of the drugs and is the legitimate owner of the disputed trademarks registered under Lords, continued use of Cipla’s trademarks and drugs by Lords may lead the public to believe that those are products of Lords,” Justice Majanja said.
“Cipla is likely to suffer damage by reason of the erroneous belief engendered by Lords’ misrepresentation that the source of Lords’ goods or services is the same as the source of those offered by Cipla.”
The court added that Lords’ products are confusingly similar to those of Cipla.
It said Lords has been passing off its products as those of Cipla Ltd.
“Cipla has proved that Lords is liable for passing off its products as those of Cipla,” he said.
The costs of the cases shall be borne by Lords.
The case between Lords Healthcare Ltd as the plaintiff and Cipla and Surgipharm as the first and second defendants, respectively, started in June 2015.
Lords told the court that Cipla and Surgipharm were infringing on its registered trademarks.
Lords is a retail company that retails, markets and distributes pharmaceutical products.
Cipla, on the other hand, is an Indian firm that develops and manufactures active pharmaceutical ingredients and formulations.
Surgipharm distributes pharmaceutical products in Kenya. It also imports and distributes Cipla’s products.
Lords argued that it had over the last three decades developed and registered products, which gained a reputation.
It added that Cipla and Surgipharm had been selling packets of drugs with a similar get-up to those of Lords, thus infringing on its trademarks.
According to the suit, Surgipharm was telling the market that the brand names Lords owned were no longer available.
Because of the fight with Cipla, it changed manufacturers.
Cipla, on the other hand, filed a constitutional petition against Lords and the PPB, saying some of its products and for which it held drug registration certificates, were being imported into Kenya without its knowledge, consent or approval.