In Glaxo Group Ltd 5 Dowelhurst Ltd together with another [2004] EWCA Civ 290, xv March, noted inwards the LexisNexis subscription-only All England Direct service, the Court of Appeal took the side of the accused parallel traders when hearing their appeal against an lodge for summary judgment against them.
Glaxo sold sure enough pharma products bearing its registered merchandise marks to diverse parties at depression prices, on the agreement that they were for role inwards Africa. The goods were diverted to a Swiss companionship which sold them on to Dowelhurst, who inwards plough imported 16 consignments of the drugs into the Britain together with sold them to hospitals. Glaxo sued for summary judgment inwards abide by of merchandise grade infringement, seeking an injunction to halt farther importation. Glaxo’s declaration was that each importation together with subsequent sale was an obvious infringement, since it was clear that none of the master copy batches of drugs had been destined for the European Economic Area (EEA). Dowelhurst argued that the drugs every bit bought had been inwards the claimant’s measure French packaging together with included the appropriate European Medicines Evaluation Agency number, indicating blessing for sale inside the EEA. Dowelhurst said that, since at that spot was nix to advise traders that the drugs were meant for Africa or weren’t to hold out sold inwards the EEA, Glaxo’s merchandise grade rights were exhausted. Peter Prescott QC held at that spot was existent prospect of successfully defending the claim inwards relation to xv out of the 16 batches, but constitute that at that spot was no prospect of a successful defense regarding the remaining batch. He thence ordered Dowelhurst to halt infringing together with awarded an draw of piece of occupation organization human relationship of profits against the inwards abide by of the unmarried batch. He also granted an injunction against Dowelhurst’s boss, whom he constitute responsible inwards police pull for the infringement. Glaxo appealed against the refusal of summary judgment inwards abide by of the xv batches together with the determination to qualify the injunction, patch the defendants cross-appealed.
The Court of Appeal dismissed Glaxo’s appeal but allowed the cross-appeals, proverb that the representative was unsuitable for summary judgment together with should transcend to a total trial on all 16 consignments. While documentary prove suggested that an ultimate finish inwards Africa was identified inwards abide by of the consignments concerned, that didn’t hateful that their buyer genuinely had to accept the goods to their ultimate destination. Since non all the details of Glaxo’s contracts of sale were known, it could nevertheless hold out shown that Glaxo knew together with consented to some of the goods going on the EEA market. Only a total trial could brand these things clear. The Court of Appeal explained that normally, when yous purchase goods, yous tin resell them. Influenza A virus subtype H5N1 sale conveys the correct of onward disposal to the buyer: a buyer who buys goods inwards the EEA amongst 1 intention (i.e. to export to Africa) mightiness alter his heed together with resell inside the EEA, since they are his goods. Sellers tin alter their minds too. In the circumstances, it was manifestly that Glaxo was a long mode from showing that at that spot was no existent prospect of a successful defense inwards abide by of each of the consignments. On the acquaint information, it could non hold out said that Dowelhurst knew, or should create got known, that the goods were intended for Africa together with that was non the variety out of indicate that could hold out resolved on a summary application. Accordingly at that spot was plenty of an arguable defense for the activeness to transcend to trial, fifty-fifty for the sixteenth consignment.
notes that it’s getting a lot harder for IP owners to instruct summary judgment these days. This determination follows inwards the footsteps of the determination of the Vice-Chancellor Sir Andrew Morritt inwards Beiersdorf 5 Ramlort (blogged past times the IPKat on 16 January). This downside is counterbalanced past times the fact that it’s instruct easier to instruct interim injunctions. So, claimants, inquire yourselves: create yous genuinely take away summary judgment, or volition interim relief suffice?
What is summary judgment? Britain Civil Procedure Rules here; US explanation here
Other summary judgments here
Speedy jurist here, here and here
Tidak ada komentar:
Posting Komentar