Merck Sharp and Dohme vs Pharmachemie B.V.
Amsterdam, Court of Appeal, 9 march 2006, Merck Sharp and Dohme vs Pharmachemie B.V.
Advertising. Pharmachemie, a generic producer, obtained registrations from the Dutch Medicines Evaluation Board (MEB) for the generic equivalent of the brand product Fosamax made by MSD. As was earlier reported (see here), MSD wrote to pharmacies and wholesalers pointing out disadvantages of the recently registered versions of Fosamax. At the time these letters were sent Pharmachemie had not yet marketed their products. This happened shortly after MSD had written its letters.
According to the ruling of the 23rd of September 2005 the primary relief judge ruled the MSD letters to be comparative advertising and to be misleading on several points. MSD was ordered to rectify the misleading statements. MSD appealed the ruling, but lost. The Court of Appeal affirmed the ruling made by the primary relief judge.
In the misleading letters MSD had not named any of the generic products or indeed Pharmachemie itself but it had referred to several generic versions of Fosamax. Pharmachemie is a major player in the market for generic medication and a competitor of MSD's. As Pharmachemie was just marketing its generic products the letters would have drawn attention implicitly comparing the products. The Court of Appeal ruled that it is likely that the recipients of the letters would know which generic products were meant even though these products had not yet been marketed.
The Court of Appeal also affirmed the primary relief judge's ruling that the writings were incomplete and as such misleading. The fact that MSD, as the publisher of the comparing advertisement, wasn’t apprised of all the relevant information at the time of writing of the letters is MSD's risk and does not change their culpability. It is the publisher’s duty to ensure all information is relevant and accurate and that it does not mislead or inadequately represent the competitor’s product. By stating that 'research had shown' it was all the more unclear that the writing did not constitute an opinion of MSD.
Reports supplied by MSD supporting their statements were insufficiently convincing as the MEB had already considered the aspects and characteristics of Pharmachemie’s products.
The Court of Appeal dismissed statements concerning packaging of the generic products as subjective, non-confirmable statements as MSD had not factually substantiated these statements.
Even though Pharmachemie's registration for it's 70 mg generic product had been cancelled on 30th September 2005, Pharmachemie still has an interest. Not only does Pharmachemie hold a registration for its 10 mg product it has also re-registered and marketed the 70 mg version. Thus Pharmachemie's interests are still valid and do still benefit from the primary relief judge's ruling.
Read the judgement here.
IEFenglish
