GenRx Pty Limited v Les Laboratoires Servier [2007] FCA 442

GenRx Pty Limited v Les Laboratoires Servier [2007] FCA 442

There is a serious question to be tried as to whether Servier's advertisement referring to 'improved stability' and the prescription stamp specifying Coversyl are misleading. The balance of convenience favours granting an interlocutory injunction restraining further publication of the advertisement but does not favour ordering a recall of the stamps due to the disproportionate burden and risk of confusion if Servier later succeeds.

Parties
Applicant: GenRx Pty Limited; First Respondent: Les Laboratoires Servier; Second Respondent: Servier Laboratories (Australia) Pty Ltd
Jurisdiction
Australia
Judgment Date
26 March 2007
Procedural Posture
Application for Interlocutory Injunction / Interlocutory Application; Reasons for Judgment on Interlocutory Relief
Outcome
Interlocutory injunction granted in part; recall of stamps not ordered; costs ordered 80% in favour of applicant
Legal Topics
Misleading and Deceptive Conduct, Interlocutory Injunction, Pharmaceutical Advertising, Brand Substitution
Trade Practices Intellectual Property Misleading and Deceptive Conduct Interlocutory Injunction Pharmaceutical Advertising Brand Substitution

Case Brief

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Parties

GenRx Pty Limited

Applicant

Les Laboratoires Servier

First Respondent

Servier Laboratories (Australia) Pty Ltd

Second Respondent

Procedural Posture

Application for Interlocutory Injunction / Interlocutory Application; Reasons for Judgment on Interlocutory Relief

Legal Issues

  1. 1 Whether the advertisement published by Servier containing the statement 'improved stability' is misleading under ss 52, 53, and 55 of the Trade Practices Act 1974 (Cth)
  2. 2 Whether the stamp distributed to doctors by Servier bearing the words 'Brand substitution not permitted for Coversyl' is misleading
  3. 3 Whether an interlocutory injunction should be granted restraining Servier from further publication of the advertisement and requiring recall of the stamps

Ratio Decidendi

There is a serious question to be tried as to whether Servier's advertisement referring to 'improved stability' and the prescription stamp specifying Coversyl are misleading. The balance of convenience favours granting an interlocutory injunction restraining further publication of the advertisement but does not favour ordering a recall of the stamps due to the disproportionate burden and risk of confusion if Servier later succeeds.

Court Disposition

Interlocutory injunction granted in part; recall of stamps not ordered; costs ordered 80% in favour of applicant

Orders

  • Servier be restrained from placing any further advertisements containing the reference to 'improved stability' until further order.
  • No recall of prescription stamps ordered.