Federal Court of Australia
FEDERAL COURT OF AUSTRALIA
Apotex Pty Ltd (formerly GenRx Pty Limited) v Les Laboratoires Servier (No 2) [2008] FCA 607
TRADE PRACTICES – misleading and deceptive conduct under s 52 of the Trade Practices Act 1974 (Cth) – stamp distributed to be applied to doctors' prescriptions containing statement "BRAND SUBSTITUTION NOT PERMITTED FOR COVERSYL" – publication of four advertisements in medical publications – advertisements variously contained other statements regarding drug – each statement considered – class of persons to whom stamp representations made includes doctors, pharmacists and patients – ordinary and reasonable doctors would not be misled by stamp – stamp could cause confusion for and mislead pharmacists and patients – Servier liable for representations contained in stamp by distributing stamp and accessorially liable for use by doctors – representations in advertisements made to doctors – representations do not misleadingly refer to government regulatory considerations – representation "tick the box" in advertisements not misleading in context of generic substitution – representations as to "improved stability" misleading – representations as to "minimise patient confusion" not misleading – statement that product "now indicated" for coronary artery disease misleading where indication several years old – use of "now" implies indication is new – contravention of s 52
Evidence Act 1995 (Cth) s 135 National Health Act 1953 (Cth) s 103(2A) Trade Practices Act 1974 (Cth) ss 52, 53, 55
Astrazeneca Pty Ltd v GlaxoSmithKline Australia Pty Ltd [2006] ATPR 42-106 considered Campomar Sociedad, Limitada v Nike International Limited (2000) 202 CLR 45 applied ConAgra Inc v McCain Foods (Australia) Pty Ltd (1992) 33 FCR 302 applied GenRx Pty Limited v Les Laboratoires Servier (2007) 71 IPR 606 cited Hornsby Building Information Centre v Sydney Building Information Centre (1977) 140 CLR 216 cited Janssen Pharmaceutica Pty Ltd v Pfizer Pty Ltd (1985) 6 IPR 227 cited Johnson & Johnson Pacific Pty Ltd v Unilever Australia Ltd (No 2) (2006) 70 IPR 574 cited National Exchange Pty Ltd v ASIC (2004) ATPR 42-000 cited Puxu Pty Ltd v Parkdale Custom Built Furniture Pty Ltd (1980) 31 ALR 73 cited Sydneywide Distributors Pty Ltd v Red Bull Australia Pty Ltd (2002) 55 IPR 354 cited Taco Co of Australia Inc v Taco Bell Pty Ltd (1982) 42 ALR 177 applied APOTEX PTY LTD (FORMERLY GENRX PTY LIMITED) v LES LABORATOIRES SERVIER and SERVIER LABORATORIES (AUST) PTY LTD ACN 004 838 500
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