Abstract Today, trade mark use has expanded beyond merely identifying the owner to convey quality and foster customer loyalty. In India’s multibillion-dollar pharmaceutical sector, where trade mark commercialization is deemed crucial for ensuring benefits beyond patent monopolies, universal healthcare policies demanding generic substitution appear as a roadblock. Trade marks in the pharmaceutical industry are regulated by national and international healthcare bodies, alongside IP offices. The WHO maintains a list of generic names for pharmaceutical products (the International Nonproprietary Names (INNs)), the monopolization of which through proprietary trade mark rights is discouraged. The Agreement on Trade-Related Aspects of Intellectual Property Rights (Marrakesh Agreement Establishing the World Trade Organization, Annex 1C, 1869 U.N.T.S. 299, 33 I.L.M. 1197 (April 15 1994) (hereinafter TRIPS Agreement), which provides a minimum standard of protection for IP assets, remains silent on the issue of the (non)registrability of INNs. In India, this requirement is regulated by somewhat inconsistent provisions and practices under the Trademarks Act and the Drugs and Cosmetics Act, both of which aim to create an eligibility-like check on a mark being applied for registration or a name intended for marketing. This regulatory fragmentation and a persistent lack of coordination between regulators under these legislations create a dissonant legal landscape in which, despite India’s TRIPS-Plus restrictions on pharmaceutical naming and judicial interventions, administrative gaps and conflicting regulatory mandates hinder the development of a cohesive policy and undermine stated objectives. A comparative reading of a different healthcare system, that of the United Kingdom, and its pharmaceutical policies further illustrates that effective coordination between trade mark offices and medicines regulators, as well as caution about pharmacist-led substitution between therapeutically non-identical products, remains central to reconciling trade mark doctrine with the realities of pharmaceutical regulation.
Abhijeet Kumar (Tue,) studied this question.