Flynn Pharma Ltd v Drugsrus Ltd & Anor

Flynn Pharma Ltd v Drugsrus Ltd & Anor

Flynn had neither placed the goods on the market nor exercised control over their quality in the exporting state; the agreements between Flynn and Pfizer did not establish unitary control; enforcement of the trade mark by Flynn is justified to protect its origin function and does not constitute a disguised restriction on trade under Article 36 TFEU.

Parties
Claimant/respondent: Flynn Pharma Limited; Defendant/appellant: DrugsRus Limited; Defendant/appellant: Tenolol Limited
Jurisdiction
England and Wales
Judgment Date
06 April 2017
Procedural Posture
Appeal / Court of Appeal Judgment
Outcome
Appeal dismissed
Legal Topics
Trade Mark Exhaustion, Free Movement of Goods, Parallel Imports, Trade Mark Infringement, Article 36 TFEU, Rebranding Pharmaceuticals
Intellectual Property European Union Law Trade Mark Exhaustion Free Movement of Goods Parallel Imports Trade Mark Infringement Article 36 TFEU Rebranding Pharmaceuticals

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Parties

Flynn Pharma Limited

Claimant/respondent

DrugsRus Limited

Defendant/appellant

Tenolol Limited

Defendant/appellant

Procedural Posture

Appeal / Court of Appeal Judgment

Legal Issues

  1. 1 Whether enforcement of Flynn's trade mark against parallel imports constitutes a disguised restriction on trade under Article 36 TFEU
  2. 2 Whether the use of 'Phenytoin Sodium Flynn' by appellants is trade mark use or an indication of product characteristics under section 11(2)(b) Trade Marks Act 1994
  3. 3 Whether Flynn had control or consent over the quality of imported goods

Ratio Decidendi

Flynn had neither placed the goods on the market nor exercised control over their quality in the exporting state; the agreements between Flynn and Pfizer did not establish unitary control; enforcement of the trade mark by Flynn is justified to protect its origin function and does not constitute a disguised restriction on trade under Article 36 TFEU.

Court Disposition

Appeal dismissed

Orders

  • Flynn Pharma Limited is entitled to enforce its trade mark rights against parallel imports rebranded as Phenytoin Sodium Flynn.
  • No disguised restriction on trade found under Article 36 TFEU.