Delhi HC rejects Sun Pharma appeal in Oxaliplatin case against Mylan Labs

Despite noting importance of first syllable of trade name, HC didn't find 'Ox' and 'Sox' similar

A division Bench of the Delhi High Court on Friday refused to provide any relief to Sun Pharmaceutical, in a case against Mylan Laboratories, alleging trademark infringement of cancer drug Oxaliplatin. Sun Pharma sells the drug under the name Oxiplat, while Mylan calls its own version as Soxplat.

After the court's refusal to entertain Sun Pharma's suit to restrain Mylan from selling the drug with the name, Soxplat, the company had approached the division bench of Justice Pradeep Nandrajog and Justice Yogesh Khanna to relook at the matter and provide the desired remedy.

Sun Pharmaceutical's counsel Sudhir Chandra argued that while the single judge had observed the importance of first syllable of a trade name, the judgment had still failed to consider the phonetic similarity between 'Ox' and 'Sox'. Sun also argued that it had been marketing the drug since 2001, while Mylan only started selling its own variant from 2009. This, Senior Advocate Chandra said, was not considered by the single judge while denying relief to the Sun Pharma.

After hearing the company's arguments, the division bench of the high court decided to side with the single judge's verdict and in the process delivered a second blow to Sun's hopes at securing a favourable result. Sun and Mylan are also at loggerheads in the Intellectual Property Appellate Tribunal (IPAB) over the same dispute and both the companies are seeking invalidation of each other's trademark registrations for the drug.

The February 7 single judge order had held, "The mere fact that the plaintiff (Sun Pharma) is the prior user or registrant of its trademark is inconsequential." The single judge also observed that the prefixes 'SOX' and 'OXI' used by the companies in their respective names were distinctly different in nature. Instead, the court had told both the companies that they could again approach the bench after the IPAB passed its own judgment, after which the matter could be considered again.