Court orders pharmaceutical company to recall HIV, hypertension drugs from market
The High court has ordered a pharmaceutical company that sells HIV/Aids, diabetes and hypertension drugs to recall its products from the market in two weeks’ time.
In a ruling delivered by Justice David Majanja, Lords Healthcare Ltd was ordered to quarantine and recall products covered by Cipla Ltd’s drug registration certificates in the local market.
Additionally, Justice Majanja ordered the company to cease advertising, distributing, and manufacturing medicines, including hypertensive antiretrovirals.
This came after three pharmaceutical giants, Lords Healthcare Ltd, Cipla Ltd, and Surgipharm Ltd, went to court to fight copyright battles and accuse each other of selling drugs with similar trademarks.
The dispute between Lords Healthcare Ltd and Cipla involved the manufacture and distribution of Amlocip NB, Amzart 5, Itorcip, Lozart 50, Lozart H, Ocemax 200 DT, Terbisil 250, and other drugs.
In the 1980s, the two companies agreed to work together in making and distributing the drugs. They also signed a representative deal.
Justice Majanja said that Cipla’s ownership of the drugs was valid 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.
Lords is a retail company that retails, markets and distributes pharmaceutical products.
On the other hand Cipla is an Indian firm that develops and manufactures active pharmaceutical ingredients and formulations.
Lords had argued that it had over the last three decades developed and registered products, which gained a reputation.
It added that Cipla and Surgipharm (distributes pharmaceutical products in Kenya, imports and distributes Cipla’s products) had been selling packets of drugs with a similar get-up to those of Lords, thus infringing on its trademarks.
