On September 26, 2022, the Court of Appeal supported the position of the Antimonopoly Committee of Ukraine in the case against “Pharmaceutical Company “Zdorovya” LLC regarding the copying of the packaging of a competitor’s product.
In 2017, “Pharmaceutical Firm “Darnytsia” PJSC appealed to the Antimonopoly Committee with a complaint, claiming that “Pharmaceutical Company “Zdorovya” LLC copied the outer packaging of “Tsitramon-Darnytsia” drugs for the sale of the product “Tsitramon-Zdorovya” on the market.
The committee found that the packaging of both drugs was almost similar. In particular, the use of similar color design and placement of key elements on both packages.
In the course of the research, the Committee conducted a survey of consumers and found that according to 90.5% of respondents, the design of both packages is really similar.
It is important that “Pharmaceutical firm “Darnytsia” began to use the appropriate packaging design in 2016, and the inscription “Tsitramon” in a certain font (white letters on a green background) was officially registered by the company in 2012.
Taking into account the stated facts, the Committee imposed a fine of UAH 10.2 million (273 thousand USD) on the “Pharmaceutical Company “Zdorovya” for improperly using the design of the packaging of its medicinal product “Tsitramon-Zdorovya”, which is similar to the packaging of its competitor.
The defendant appealed the decision of the Antimonopoly Committee in court. The first instance supported the position of the Committee. At the same time, in 2020, the Court of Appeal invalidated this decision of the Antimonopoly Committee.
Antimonopoly Committee, in turn, challenged this position in the Supreme Court, which ruled that the appellate authority had incorrectly evaluated the Committee’s evidence in the case. It was returned to the same court for retrial.
After re-examining the case, the Court of Appeal upheld the Committee’s decision.