THE HIGH COURT OVERTURNS THE MARITIME & COMMERCIAL HIGH COURT’S DECISION IN A PRINCIPAL DISPUTE REGARDING THE MARKETING AND SALE OF MEDICINAL PRODUCTS

On the 15th of December the High Court (Eastern Division) rendered its judgment in a dispute between Glenmark Pharmaceuticals Nordic AB and Celon Pharma on one side and Orifarm A/S on the other.

The High Court concluded, as opposed to the Maritime & Commercial High Court, that Orifarm did not violate the Marketing Practices Act in its marketing and sale of the parallel imported and repackaged medicinal product (Salmex Orifarm). The High Court emphasized that Orifarm had not shown unfair behavior towards Glenmark, and that Orifarm’s actions had not been made in order to displace Glenmark from the relevant market.

The other part of the dispute related to alleged trademark infringements related to the parallel import and sale of  Salmex Orifarm. The High Court found that Orifarm had given the trademark holder (Celon Pharma) reasonable notice, pursuant to the principles laid down by the Court of Justice of the European Union, regarding the intended parallel import, marketing and sale of Salmex Orifarm, and that it also was not a trademark infringement that Orifarm had not given the holder of the Danish marketing authorization, Glenmark, a stand-alone notice regarding the intended marketing.  

The repackaging itself of the parallel imported medicinal products was also undertaken in accordance with trademark law, as it would neither damage the product’s original condition, the Salmex trademark, nor the reputation of the trademark holder.

Orifarm was therefore acquitted and awarded cost awards in accordance with the special rates for IP-litigation as established in the Enforcement directive.

Orifarm was represented by BUGGE VALENTIN.

The decision of the High Court can be read in full here.