Case: Apotex Pty Ltd (formerly GenRx Pty Limited) v Les Laboratoires Servier (No 2) [2008] FCA 607
Outcome: considered
On 8 May 2008 I delivered reasons in Apotex Pty Ltd (formerly GenRx Pty Limited) v Les Laboratoires Servier (No 2) [2008] FCA 607 (' Apotex v Servier ') following Apotex Pty Ltd's ('Apotex') application to the Court in relation to a claim that Les Laboratoires Servier and Servier Laboratories (Australia) Pty Ltd (together 'Servier') had breached ss 52 , 53 and 55 of the Trade Practices Act 1974 (Cth) ('the Act') in the course of advertising and promoting one of its drugs, Coversyl. The subject matter was a stamp distributed to doctors by Servier which contained the phrase "brand substitution not permitted" and four advertisements (two banner advertisements and two full page advertisements). Apotex alleged that they each contained representations which were misleading or deceptive or likely to mislead or deceive under the Act. 2 My findings are set out in Apotex v Servier at [151]. For convenience and in summary those findings were: &#8226; that the stamp issued by Servier to doctors to be printed on prescriptions for Coversyl contains representations that are misleading or deceptive or likely to mislead or deceive pharmacists and patients within s 52 of the Act; &#8226; that Servier is liable for the stamp representations and has thereby contravened s 52 of the Act; &#8226; that representations contained in the first and second banner advertisements were not misleading or deceptive or likely to mislead or deceive medical practitioners; &#8226; that the first whole page advertisement caused to be published by Servier contained a representation as to improved stability that is likely to mislead or deceive medical practitioners within s 52 of the Act and Servier has thereby contravened s 52 of the Act; and &#8226; that the second whole page advertisement caused to be published by Servier contained a representation in relation to the indication for Coversyl for stable coronary artery disease that is likely to mislead or deceive medical practitioners within s 52 of the Act and Servier has thereby contravened s 52 of the Act. 3 The parties requested that they be given the opportunity to submit draft orders to give effect to the reasons for judgment and written submissions were filed. 4 The parties have agreed on the form of declarations. I will make those declarations. 18 I should note that while the detail of the calculation of costs is not for me, I do not necessarily accept or understand why Servier says that it has succeeded totally on the issue of patient confusion. I note in particular my findings in respect of the use of the stamp in Apotex v Servier at [151]. 19 The parties have indicated that they wish to make some further submissions on costs. Accordingly I will make the orders as currently determined and a specific costs order will follow. I certify that the preceding nineteen (19) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Bennett. Associate: Dated: 4 August 2008 Counsel for the Applicant: D K Catterns QC and S Goddard Solicitor for the Applicant: Freehills Counsel for the Respondents: A J L Bannon SC and A J Ryan Date of Hearing: 16 to 20 July 2007; 27 August 2007 Date of Final Submissions: 30 July 2008 Date of Judgment: 9 July 2008 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2008/1139.html