Glaxo Wellcome UK Ltd & Anor v Sandoz Ltd & Ors

Glaxo Wellcome UK Ltd & Anor v Sandoz Ltd & Ors

Glaxo failed to prove that the colour purple was distinctive of Seretide as to trade origin or characteristics in the minds of patients or healthcare professionals at the relevant date. There was no evidence of actionable misrepresentation, confusion, or likelihood of confusion caused by Sandoz's use of purple on AirFluSal Forspiro. The surveys relied on by Glaxo were methodologically flawed and did not establish distinctiveness. The use of purple followed informal colour conventions denoting drug class, not trade origin. There was no evidence of recklessness or intent to deceive by the defendants. Aeropharm and Hexal were not jointly liable as there was no evidence of participation in a...

Parties
Claimant: Glaxo Wellcome UK Limited; Claimant: Glaxo Group Limited; Defendant: Sandoz Limited; Defendant: Sandoz International GmbH; Defendant: Aeropharm GmbH; Defendant: Hexal AG; Defendant: Sandoz AG; Defendant: Vectura Group PLC; Defendant: Vectura Delivery Devices Limited
Jurisdiction
England and Wales
Judgment Date
04 October 2019
Procedural Posture
Civil (intellectual Property Passing Off) / Judgment After Trial
Outcome
All claims dismissed.
Legal Topics
Passing Off, Distinctiveness of Colour, Pharmaceutical Regulation, Misrepresentation, Goodwill, Joint Liability
Intellectual Property Pharmaceutical Law Passing Off Distinctiveness of Colour Pharmaceutical Regulation Misrepresentation Goodwill Joint Liability

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Parties

Glaxo Wellcome UK Limited

Claimant

Glaxo Group Limited

Claimant

Sandoz Limited

Defendant

Sandoz International GmbH

Defendant

Aeropharm GmbH

Defendant

Hexal AG

Defendant

Sandoz AG

Defendant

Vectura Group PLC

Defendant

Vectura Delivery Devices Limited

Defendant

Procedural Posture

Civil (intellectual Property Passing Off) / Judgment After Trial

Legal Issues

  1. 1 Whether the use of the colour purple on AirFluSal Forspiro inhalers and packaging constitutes passing off by misrepresentation as to trade origin or equivalence with Seretide Accuhaler.
  2. 2 Whether the colour purple is distinctive of Seretide in the minds of healthcare professionals or patients.
  3. 3 Whether there was any actionable misrepresentation or likelihood of confusion among the relevant public.

Ratio Decidendi

Glaxo failed to prove that the colour purple was distinctive of Seretide as to trade origin or characteristics in the minds of patients or healthcare professionals at the relevant date. There was no evidence of actionable misrepresentation, confusion, or likelihood of confusion caused by Sandoz's use of purple on AirFluSal Forspiro. The surveys relied on by Glaxo were methodologically flawed and did not establish distinctiveness. The use of purple followed informal colour conventions denoting drug class, not trade origin. There was no evidence of recklessness or intent to deceive by the defendants. Aeropharm and Hexal were not jointly liable as there was no evidence of participation in a...

Court Disposition

All claims dismissed.