Counterfeit pharmaceuticals case settled without main hearing
In April 2010 Eli Lilly and Company (“Lilly”), the manufacturer of the erectile dysfunction pharmaceutical Cialis, was informed that the Swedish customs had ceased a consignment of products marked and/or shaped in such a way that it was suspected to infringe the intellectual property rights of Lilly. The consignment was addressed to an individual, herein named G.N.
Lilly instituted action against G.N. before the Stockholm District Court, demanding that the packages, bottles of pills and brochures marked with the CIALIS and LILLY trademarks as well as the pills shaped as and marked with the trademarks should be destroyed on the expense of G.N. Further, Lilly demanded that G.N. was to be prohibited under penalty of a fine of SEK 300 000 to import, market, distribute and keep the products in stock. As basis for their action Lilly referred to several trademark registrations and presented excerpts thereof as evidence, as well as photographs of the ceased products.
Considering the material at hand and since no party requested it, the case was settled without a main hearing. The court found that G.N. has, without the permission of Lilly, brought the packages, bottles of pills, brochures and pills marked with the CIALIS and LILLY trademarks from a country outside of the EEA. The products marked are such goods for which the trademarks owned by Lilly are registered and the marks are practically identical to those owned by Lilly. The actions of G.N. constitute an infringement in the trademark rights of Lilly. The circumstance that G.N. never received or actually handled the products does not affect this judgment. Neither does it affect the possibility of imposing a prohibition under penalty of a fine. Due to Lilly´s interest of preventing further infringements in their trademark rights and considering the fact that it is imperative from a health perspective that pharmaceutical products are not put on the market without supervision the fine was decided to SEK 300 000. The products were also to be destroyed. However if G.N. cannot bear the costs of destruction, it may be Lilly who has to bear the costs.
Hanna Nilsson, Associate, Awapatent
