THE FINE PRINT: HOW TRADEMARK LAW REWRITES PUBLIC HEALTH NARRATIVES

Soumya Juneja
5 minutes ago
7 min read

INTRODUCTION

Public health and trademark law intersect in cardinal ways because both are ultimately concerned with protecting consumers, one through safeguarding health, the other through preventing confusion or deception in the marketplace. The Indian pharmaceutical market is overcrowded with various ‘sound-alike’ and ‘look-alike’ (LASA)^[1] drug names. Not only do these medicines circulate freely in commerce but also co-exist with other such trademarks on the Trade Marks Register under Class 05. Some of the most commonly used medicine names often start with the prefixes i.e., ‘PARA- ‘, ‘OXYN- ‘and suffixes i.e., ‘-MOL’, ‘-CIN’, amongst various other generic names. Multiple companies rely on shared prefixes and suffixes that indicate a common component or drug’s potency. Since, these shared elements are not inherently distinctive and are common to trade, they may mislead consumers. This recurring theme has deep roots in India’s pharma sector, which is predominantly focused on manufacturing generic medicines. Hence, generic names and the original product are interchangeably used in the Indian market, even though they are not inherently interchangeable and this may end up confusing the consumers. Thus, the doctrine of “heightened caution” is followed in cases involving goods in the medicinal sector. The burden of due diligence for approving pharma drug names is largely on the Indian Trademarks Registry and the Courts. This article will primarily examine the role of trademarks in overshadowing critical public health concerns, with particular attention to the recent FSSAI order regulating the use of the term ‘ORS’ (Oral Rehydration Solution) in product branding.

FOOD SAFETY AND STANDARDS AUTHORITY OF INDIA (FSSAI) ORDER AND DELHI HIGH COURT’S DECISION ON THE USAGE OF THE TERM ‘ORS’ (ORAL REHYDRATION SOLUTION)

The FFSAI (central authority ensuring food safety in India) vide its order dated October 14, 2025^[2] withdrew its previous orders (Order no. RCD-15001/6/2021-Regulatory-FSSAI [E-1475] dated July 14, 2022 and Order no. RCD-15001/6/2021-Regulatory-FSSAI [E-1475] dated February 02, 2024) which permitted the use of the term ‘ORS’ as a prefix or suffix in the product name with a warning “the said product is NOT as ORS formula as recommended by WHO”. The aforementioned order was further clarified vide the order dated October 15 2025^[3]^,whereby the FSSAI prohibited the use of the term ‘ORS’ in any shape or form, whether as a combination in a product name or as a standalone brand name.

Several entities contested the October 15th order and asked the Court for permission to sell their remaining inventory. Their request, however, was ultimately denied. The Court reasoned that allowing the continued distribution of the leftover stock would undermine the public health objectives that aligns with the Order. Consequently, the entities were required to comply with the directive immediately, despite the financial and logistical difficulties they claimed they would face.

According to the Court, considering the risk to public health, it is necessary, proportionate and fair that use of the term ‘ORS’ is prohibited unless it conforms with World Health Organisation (WHO) prescribed formulation. The Petitioner in one of the cases^[4], also argued that ‘ORSL’ is a coined term, however, the Court deemed it to phonetically and visually resemble the term ‘ORS’, hence creating a likelihood of confusion. Following were the noteworthy findings of the Court:

Use of any variations of the term ‘ORS’ violates the FSS (Labelling and Display) Regulations, 2020 and the FSS (Advertising and Claims) Regulations, 2018;
FSSAI’s order is consistent with legal requirements and public health and thus, private commercial losses cannot have an overriding effect on statutory obligations under FSS.
Withdrawal of the term ‘ORS’ in food products was mandatory to uphold public health and consumer safety.

INTERSECTION BETWEEN TRADEMARK LAW AND PUBLIC HEALTH

Overriding effect of Food Safety and Standards Act, 2006

The FSSAI orders have also paved a way for trademark jurisdiction. The case of Ram Nath v. State of UP^[5] was cited in the Delhi High Court order in view of the petition filed by the aggrieved citizens. In this case, the Court interpreted the non-obstante clause in Section 89 of the Food Safety and Standards Act, 2006 (FSS Act) i.e., the Act has an overriding effect on any other law (including the Trade Marks Act). This section was elaborated as brand owners mostly argue that they have valid Trademark rights and, hence, can continue using their mark to produce, manufacture and sell their products. Despite that, the Trade Mark Act cannot dilute the consumer protection mandate under the FSS Act. Therefore, no person can rely on trademark rights to provide a rationale for using mislabelled or misleading marks.

Deceptive similarity between pharmaceutical trademarks

Trademarks are heavily intertwined with consumer rights and public health and Sections 9(2)(a) and 11(1) of the Trade Marks Act, 1999 play a pivotal role in safeguarding against registration of marks which may deceive the public or are deceptively similar to prior mark/s. The landmark judgment of Cadila Healthcare Limited vs. Cadila Pharmaceuticals^[6], laid down several criterions to understand deceptive similarity between two marks, especially in cases of pharmaceutical industries, like 1) nature of the marks, 2) degree of resemblance, 3) nature of the goods, 4) class of consumers, 5) mode of purchase and 6) surrounding circumstances. The Court in this case also observed that “the tests of confusing similarity are modified when the goods involved are medicinal products. Confusion of source or product between medicinal products may produce physically harmful results to purchasers and greater protection is required than in the ordinary case. If the goods involved are medicinal products each with different effects and designed for even subtly different uses, confusion among the products caused by similar marks could have disastrous effects. For these reasons, it is proper to require a lesser quantum of proof of confusing similarity for drugs and medicinal preparations. The same standard has been applied to medical products such as surgical sutures and clavicle splints.” This is one of the most imperative judgments in the Indian jurisprudence as it discussed public health extensively and implemented stricter standards for likelihood of confusion in such cases.

In the case of Macleods Pharmaceuticals vs. Union of India^[7]^,the main issue was whether the mark “OFLOMAC” of the petitioner was of such a nature as to deceive the public or cause confusion with respect to the mark “OFRAMAX” of respondent as envisaged under Section 9(2)(a) and Section 11(1)(b) of Trade Mark Act, 1999 Act.

The Court in this case laid down the following principles to determine confusion especially in cases of medicinal products:

i) Courts must exercise the highest level of caution in trademark disputes involving medicinal/pharmaceutical products to prevent any possibility of public confusion.

ii) A lower standard of proof for confusing similarity applies to medicinal products because confusion can endanger health, not just cause economic loss.

iii) Even the slightest possibility of confusion between medicinal trademarks is sufficient to restrain their use, without speculation.

iv) Similarity and confusion must be judged from the perspective of an average consumer, considering overall impression, salient features, and likelihood of confusion.

v) The Court’s foremost duty is to protect the public and maintain the purity of the trademark register, regardless of inconvenience to individual parties.

vi) Trademark comparison should be based on overall impression and first impression, not meticulous analysis, considering structural and conceptual similarity.

vii) The purpose of the trademark register is to prevent public deception by ensuring consumers can correctly identify the source of goods.

It was concluded that slight confusion in relation to medicinal products can lead to irreversible and grave consequences, requiring the Courts to lessen the standard of proof of infringement. It was held that the mark “OFLOMAC” is likely to cause confusion and deceive the consumers.

The connection between public health and trademark infringement is clear: mislabelled medicines rely on the misuse of trusted trademarks to deceive consumers and infiltrate legitimate markets. However, the names of such products are often overlapping as they originate from a disease they are curing, or it indicates the chemical component as well. Thus, there is a higher duty on Courts to effectively and sensitively solve this dilemma. By protecting the integrity of pharmaceutical brands, trademark law acts as an essential line of defence against unsafe products. While trademark practices cannot replace regulatory checks and balances, it remains a powerful tool to ensure public safety. This is necessary especially for the illiterate population of the country or people living in rural areas with less accessibility and/or resources to receive such knowledge. This demographic may have imperfect recollection and may repeatedly get confused between look-alike and sound-alike medicines, and thus, can lead to major repercussions.

Prohibition against registration of Non-Proprietary Names (INN)

There is another such section that safeguards and assists the consumers in identifying fallacious medicinal products. Section 13(b) of the Trade Marks Act specifically refers to International Non-Proprietary Name (INN) and prohibition of the registration of the same, as one single entity cannot monopolise such names through trademark claims. INN, introduced in 1950, is a globally standardised name assigned by WHO to help consumers identify pharmaceutical substances by their active ingredient instead of by their brand. In 1991, the Fifth Report of the WHO Expert Committee on the Use of Essential Drugs, stated^[8]:

“The procedure for selecting INNs allows manufacturers to contest names that are either identical or similar to their licensed trade-marks. In contrast, trade-mark applications are disallowed, in accordance with the present procedure, only when they are identical to an INN. A case for increased protection of INNs is now apparent as a result of competitive promotion of products no longer protected by patents. Rather than marketing these products under generic name, many companies apply for a trade-mark derived from an INN and, in particular, including the INN common stem. This practice endangers the principle that INNs are public property; it can frustrate the rational selection of further INNs for related substances, and it will ultimately compromise the safety of patients by promoting confusion in drug nomenclature."

CONCLUSION

The FSSAI’s decision to ban the use of the term ‘ORS’ on non-therapeutic beverages and the Delhi High Court’s endorsement of that ban reflects a powerful statement that intellectual property rights are not absolute, especially when public health is at risk. While companies have legitimate trademark interests, they must not come at the cost of misleading consumers or compromising safety. Public health and trademark law intersect in important ways because both are ultimately concerned with protecting consumers. In public health, clarity, accuracy, and trust in product information are vital. When terms with medical significance like “antiseptic,” “probiotic,” “ORS,” or “antiviral” are used loosely as trademarks or marketing labels, they can distort consumer understanding and undermine health outcomes. Thus, the FSSAI order serves as a coherent directive to pharmaceutical companies not to dilute the market or mislead consumers and reinforces greater awareness and vigilance regarding mislabelled medical products available in the market.