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Has the decision in Flynn Pharma Ltd v Drugsrus Ltd and another  EWHC 2759 (Ch) clarified the law of trade mark infringement concerning parallel imports of repackaged pharmaceuticals? Tamsin Holman, partner in the dispute resolution legal group at intellectual property specialist D Young & Co, assesses the implications of the case.
What is the background to this case?
Flynn Pharma Limited (Flynn) was attempting to stop the proposed sale in the UK of a parallel imported epilepsy drug which was rebranded with its trade mark FLYNN. The parallel importers (Drugsrus) were intending to purchase phenytoin sodium capsules in other EU countries, where the product is made and marketed by Pfizer under its brand name EPANUTIN, and import them into the UK for repackaging and sale under the name ‘Phenytoin Sodium Flynn’. In 2012, Flynn had acquired the UK marketing authorisation for phenytoin sodium capsules from Pfizer (who originally developed the drug) and, from September 2012, sold the product in the UK as ‘Phenytoin Sodium Flynn’. Pfizer stopped selling the capsules in the UK market shortly thereafter, but continued to sell other presentations (non-capsules) under their EPANUTIN brand. Drugsrus denied infringement of Flynn’s trade mark on two grounds:
How did the High Court address the defendant’s argument that their use of the word FLYNN did not amount to trade mark use?
The court had little hesitation in finding that the use of ‘Phenytoin Sodium Flynn’ on the parallel imported product constituted use as a trade mark, rather than being descriptive of the goods. Drugsrus were therefore unable to avail themselves of the defence under TAM 1994, s 11(2)(b). In considering the Court of Justice of the European Union (CJEU) decisions in Adam Opel AG v Autec AG: C-48/05  IP & T 408 and Arsenal Football Club plc v Reed: C-206/01  IP & T 43, the judge viewed the situation as being closer to the latter, since the use of the word FLYNN would be perceived by consumers as indicating that the product originates from Flynn as being the entity responsible for the goods.
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