10 Million Fine. The Court of Appeal Supported the Position of the AMCU in the Citramon Case

On September 26, 2022, the Northern Commercial Court of Appeal supported the position of the Antimonopoly Committee of Ukraine in the case against the Pharmaceutical Company “Zdorovye”. This is about copying the packaging of a competitor’s product.

Back in 2017, Darnitsa Pharmaceutical Company, which manufactures tablets under the trade name “Citramon-Darnitsa”, filed a complaint with the Committee. According to the complainant, its competitor, the Pharmaceutical Company “Zdorovye”, copied the outer packaging of this medicinal product during the production of its product – “Citramon-Zdorovye” tablets.

The committee established that the packaging of both products is similar indeed. In the course of the examination, the Committee conducted a consumer survey and found that according to 90.5% of respondents, the design of both packages was really similar.

This means that an unaware consumer, choosing medicines, can confine himself/herself only to the visual perception or similarity of the name. Therefore, the products of Zdorovye could be perceived as those manufactured by Darnitsa.

It is important that Darnitsa started using this packaging design in 2016, and the inscription “Citramon” in this font (white letters against a green background) was officially registered by the company in 2012. No permits for the use of these marks have been granted to Zdorovye.

In 2020, the Antimonopoly Committee recognized that Zdorovye illegally used the design of the packaging of its medicinal product “Citramon-Zdorovye”, which is similar to the packaging of its competitor. For this violation, the company was fined UAH 10,191,755.

The respondent appealed the decision of the AMCU in court. The first instance supported the position of the Committee. Therewith, in 2020, the Northern Court of Appeal invalidated this decision of the AMCU No. 793-р dated December 17, 2020.

In its turn, the AMCU challenged this position of the Northern Commercial Court of Appeal in the Supreme Court, which ruled that the appeal body incorrectly evaluated the Committee’s evidence in the case. It was remitted to the same court.

After re-examination of said appeal, on September 26, the Northern Commercial Court of Appeal upheld the abovementioned decision of the Committee.