samedi, août 28, 2010

Denmark: Supreme Court fines EuroPharma for drug rebrand

Supreme Court fines EuroPharma for drug rebrand


In July 2004 pharmaceuticals and chemicals importer EuroPharma commenced the parallel import and sale of a veterinary drug named Tailan which it rebranded as Tylan - a registered trademark belonging to drug manufacturer Eli Lilly. In October 2005 Eli Lilly objected to the rebrand and demanded that the product be removed from sale.

Before the Supreme Court,
(1) EuroPharma admitted that it had violated the trademark, but argued that it should have to pay only Dkr143,000 in remuneration, calculated as a percentage of the infringing drug's alleged turnover. However, Eli Lilly claimed that in addition to remuneration of 5% of the turnover, it was entitled to compensation for further damages caused by the infringement.

In accordance with the usual practice for trademark infringement in connection with parallel imports of drugs, the Supreme Court found that Eli Lilly was entitled to remuneration under Section 43 of the Trademarks Act - calculated as 5% of EuroPharma's unauthorised turnover from the drug. EuroPharma did not contest that its turnover from Tylan had been Dkr4.564623 million; therefore, the fine was set at Dkr228,231. However, the Supreme Court found that Eli Lilly had not proven that the trademark infringement had caused further damages to the company, and consequently there was no basis for further remuneration including market disturbance.

For further information on this topic please contact Mads Marstrand-Jorgensen at Norsker & Co by telephone (+45 33 43 31 00), fax (+45 33 13 38 38) or email (mmj@norsker.dk).

Endnotes

(1) EuroPharma Dk ApS v Eli Lilly and Company, May 26 2010, Case 516/2007.