Ireland: Notable IP Cases From 2017

While several of the Irish decisions did not amount to unprecedented changes to Ireland's IP landscape, they did confirm the approach to be taken on many issues. We review some noteworthy cases from the last year. 

Patents

Gilead Sciences sought an interlocutory injunction application against Teva Pharma and Mylan relating to the launch of a generic version of the well-known HIV drug Truvada. In November 2017, the Commercial Court refused to grant an interlocutory injunction in the context of SPC infringement proceedings. Mr Justice McGovern refused the injunction sought on the basis that, should the defendants ultimately lose at the trial of the action, damages would be an adequate remedy for the plaintiff. The judge placed particular emphasis on the transparency and availability of sales data within the pharmaceutical sector.

This decision confirmed the Irish Court's position that the adequacy of damages as a remedy to the applicant will be a deciding factor in the decision on whether to grant an interlocutory injunction. We acted for Teva Pharmaceuticals in the defence of the injunction application. The SPC infringement action is listed for hearing in April 2018.

Trade Marks

A trade mark infringement action relating to the use of the 'Nutriplete' mark was one of the largest trade mark cases to come before the Commercial Court in 2017. Nutrimedical, the owners of the EU trade mark for 'Nutriplete' issued proceedings against Nualtra Limited for trade mark infringement. The matter was entered into the Commercial Court and involved a number of individual applications including an application to cross-examine the deponent of a discovery affidavit and an application to remove the matter from the Commercial List. Related proceedings were also issued against a number of wholesalers and suppliers. In May 2017, the Commercial Court found in favour of Nutrimedical and awarded a sum in damages. The court analysed the likelihood of confusion between the marks and this decision is a useful guidance on the application of that test before the Irish courts.

Comparative Advertising

In April 2017, the Court of Appeal overturned an earlier High Court ruling which stated that Dunnes Stores had infringed Aldi's trade marks by the use of a comparative pricing advertisement. Dunnes had run an advertising campaign in the summer of 2013 which claimed that their prices were cheaper than Aldi's prices for 262 separate products. In June 2015, the High Court found that 14 of the comparisons were in breach of the Comparative Advertising Regulations and consumer protection legislation. The Court of Appeal disagreed with the High Court's analysis of the majority of advertising material. This judgment provides welcome clarification on the correct interpretation and boundaries imposed by comparative advertising legislation in Ireland.

We discuss the likely impact of this decision in greater detail here.

Conclusion

2017 did not bring any unprecedented changes to the IP landscape in Ireland. The decisions instead confirm the approach to be taken across a number of issues. Anticipated IP decisions in 2018 include the substantive hearing of the Gilead/Teva/Mylan SPC litigation in April 2018 and a trial in trade mark infringement/passing off litigation concerning Irish souvenirs, which is due to be heard in June 2018.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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