B Braun Medical (Pty) Limited v Fresenus Kabi South Africa (Pty) Ltd (1481/2007) [2008] ZAECHC 27; 2008 BIP 389 (SE) (15 April 2008)

B Braun Medical (Pty) Limited v Fresenus Kabi South Africa (Pty) Ltd (1481/2007) [2008] ZAECHC 27; 2008 BIP 389 (SE) (15 April 2008)

The court found that the applicant failed to establish that the respondent's statements regarding Venofundin were false, misleading, or constituted injurious falsehood. The statements made by the respondent were either supported by referenced scientific articles or were not shown to be factually incorrect. The...

Source-derived case information.

Citation
[2008] ZAECHC 27
Parties
Applicant: B Braun Medical (Pty) Limited; Respondent: Fresenus Kabi South Africa (Pty) Ltd
Court
High Courts - Eastern Cape
Jurisdiction
South Africa
Judgment Date
15 April 2008
Case Number
1481/2007
Procedural Posture
Urgent Application / Interim Interdict and Application for Leave to Supplement Answering Affidavit
Outcome
The application for interim relief is refused with costs. The application for leave to file a supplementary answering affidavit is dismissed with no order as to costs.
Judges
Dambuza
Legal Topics
Unlawful Competition, Interim Interdict, Injurious Falsehood, Comparative Advertising
Commercial and Corporate Civil Procedure Unlawful Competition Interim Interdict Injurious Falsehood Comparative Advertising

Source-derived case record

Summary, issues, holding and outcome

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Parties

B Braun Medical (Pty) Limited

Applicant

Fresenus Kabi South Africa (Pty) Ltd

Respondent

Procedural Posture

Urgent Application / Interim Interdict and Application for Leave to Supplement Answering Affidavit

Legal Issues

  1. 1 Whether the respondent's statements regarding Venofundin constitute injurious falsehood and unlawful competition.
  2. 2 Whether the applicant is entitled to interim interdict restraining the respondent from distributing certain documents and information.
  3. 3 Whether the respondent should be granted leave to file a supplementary answering affidavit.

Ratio Decidendi

The court found that the applicant failed to establish that the respondent's statements regarding Venofundin were false, misleading, or constituted injurious falsehood. The statements made by the respondent were either supported by referenced scientific articles or were not shown to be factually incorrect. The applicant did not demonstrate that Voluven was not associated with hyperbilirubinaemia or that the statements about dosage, contraindications, and effects on coagulation were false or misleading. The comparison of package inserts did not reveal material distinctions that would render the respondent's statements unlawful. The court held that the applicant had not made out a case for...

Court Disposition

The application for interim relief is refused with costs. The application for leave to file a supplementary answering affidavit is dismissed with no order as to costs.

Orders

  • The interim relief sought is refused with costs.
  • The application for leave to file a supplementary answering affidavit is dismissed with no order as to costs.