unauthorized access to the protected package easily detected and allow genuine packs of drugs to be traced back to manufacturers and distributors. Every prescription drug package will have to be registered in the common EU database from which it can only be removed if purchased by pharmacies or used in hospitals. To comply with the new system, the EU member states will need to introduce major IT-related changes, some of which may be complicated or timeconsuming to implement. Some estimates say that this will affect 17 billion boxes of prescribed medicines per year, which come from 4,600 manufacturers and reach 177,000 distribution places. Hungarian experts are somewhat concerned about these big changes, especially since in Hungary counterfeit pills have never got into the legal medicine chain, i.e. manufacturer – retailer – pharmacy/hospital/doctor. “The best practice would be to gradually develop the IT system, starting with the most narrow medicine circle first, which means fewer packages with safety features and more drugs on the exception list”, stated Dr. Livia Ilku, head of the Hungarian Pharmaceutical Manufacturers Association. Moreover, OXETOL was being sold in blister packs whereas EXITOL was being sold in bottles or sachets. The graphics on the OXETOL pack displayed a man and his brain, clearly representing that this was a drug for treating a brain disorder whereas on the EXITOL pack, the graphics showed an intestine, which again showed that the drug was directed to treat an intestinal disorder (constipation). Further, the graphics on the OXETOL product was in orange script on a white background and the use of the color brown whereas on the EXITOL pack there was a yellow and white color scheme and EXITOL was written in a distinctive blue script. Both drugs were available on prescription basis only. In the case of OXETOL, the prescribing doctor would be a neurologist, whereas in the case of EXITOL it would be a physician at a hospital, EXITOL being a hospital administered laxative. The Court further observed that the consuming patients would also be different, neuro patients in one case and in the other case patients suffering from intestinal disorders who were admitted to a hospital. Members News New Members We are delighted to welcome the following new members to the Group: Merel Kamp of Signify B.V., Amsterdam, The Netherlands merel@signify-ip.nl Keith Weltsch of Scully, Scott, Murphy & Presser, PC, Garden City, New York, USA kweltsch@ssmp.com Sheldon Pontaoe of Alcon Laboratories, Inc., Fort Worth, Texas, USA Sheldon.pontaoe@alcon.com Peter Spies of Dineff Trademark Law Limited, Chicago, Illinois, USA pspies@dineff.com James Saul of Faegre Baker Daniels LLP, Chicago, Illinois, USA James.Saul@FaegreBD.com India Sharabh Shrivastava, CHADHA & CHADHA In a recent decision dated 12 September, 2014 involving pharmaceutical products in the matter of Sun Pharmaceutical Industries Limited v Anglo French Drugs and Industries Limited, the Division Bench of the Delhi High Court while holding OXETOL to be dissimilar to EXITOL opined that slight semblance of phonetic similarity between two marks would not automatically satisfy the test of confusion to a man of average intelligence having imperfect recollection and it is necessary that the marks are compared as a whole. The decision interestingly lays emphasis on an important factor of visual representation while determining the question of deceptive similarity in the The decision interestingly lays emphasis on an important factor of visual representation while determining the question of deceptive similarity in the context of pharmaceutical products as patients in India may differentiate between the products based on the visual representation of packaging or colour scheme of the drug rather than discerning or comprehending the word element mentioned on the packaging. Priyanka Sukhija of S.S. Rana & Co, New Delhi, India accounts@ssrana.com Timothy Lyden of Hogan Lovells, McLean, Virginia, USA Timothy.lyden@hoganlovells.com John Ward of Novartis Vaccines, Cambridge, Massachusetts, USA john.ward@novartis.com Ricardo Enrique Antequera H. ricardoenrique@antequera.com.ve and Ricardo Alberto Antequera H. ricardoalberto@antequera.com.ve both of Estudio Antequera Parilli & Rodriguez, Caracas, Venezuela Leticia Provedel da Cunha of Provedel Advogados, Sao Paulo, Brazil leticia.provedel@provedel.com.br The quintessence of the decision of the Appellate Court lies in the fact that the court, while determining the question of similarity between two marks, relied more on the entire visual representation of the two pharmaceutical products rather than considering the marks to be words per se. Further, what seems to have guided the court to hold OXETOL to be dissimilar to EXITOL is that EXITOL was sold in syrup and granule form whereas OXETOL was sold in the form of tablets or capsules. In view of the varying infrastructure for supervision of physicians and pharmacists of the medical profession in our country due to linguistic, urban, semi-urban and rural divide across the country and with a high degree of possibility of even accidental negligence, this decision certainly comes at an opportune time. It directs to take into account significant consequential factors namely active ingredient, product form, packaging, artwork/ graphics, visual impression, disease condition, prescribing doctor, purchasing public, consuming public and price in addition to merely comparing the word element while determining the question of deceptive similarity of marks in the context of pharmaceutical products in India. 4 Chris Tangang of Thomson Reuters, Washington, DC, USA chris.tangang@thomsonreuters.com Amber Koslucher of Computer Packages Inc., Rockville, Maryland, USA akoslucher@computerpackages.com Dmitri Anohin of Agency Tria Robit, Riga, Latvia info@triarobit.com Neha Ramani of Krishna & Saurastri Associates, Mumbai, India neha@krishnaandsaurastri.com Patrick Hayford of Thomson Reuters, La Grange, Illinois, USA Patrick.hayford@thomsonreuters.com