Pharmaceutical Packaging Constitutes Marketing in the Sense of the Swedish Marketing Act
- Sweden
- 10/03/2008
- Roschier, Attorneys Ltd. - Sweden
The Swedish Market Court overruled a District Court’s decision to grant interim injunction in a case concerning essentially the packaging of parallel imported pharmaceuticals on 15 September 2008. The Market Court confirmed that pharmaceutical packages constitute marketing under the Swedish Marketing Act, but due to inadequacies in the definition of the relevant market concluded that an injunction was not justified.
The key issue on trial was a claim by an original manufacturer that a parallel importer sold pharmaceuticals in packaging confusingly similar to the packaging of the original manufacturer. The pharmaceutical in question was only available from pharmacies and sold on prescription.
The District Court found that the parallel importer’s packaging was misleading and ordered an interim injunction on the sale of the pharmaceuticals in such packaging. The parallel importer appealed the decision to the Market Court primarily on the grounds that the District Court had incorrectly found the packaging to constitute marketing. The Market Court rejected the parallel importers primary argumentation and confirmed that packaging of pharmaceuticals indeed constitutes marketing in the meaning of the Swedish Marketing Act and the Marketing Act is applicable.
The Market Court was not satisfied with the manner in which the original manufacturer had determined the relevant market. According to the market investigations presented by the original manufacturer, the relevant group of customers was pharmacists. However, further investigation indicated that the relevant group could be broader than just pharmacists, and include also consumers, for example.
As the definition of the relevant market was inadequate, the Market Court found that, at this stage of the process, the original manufacturer had not been able to show that probable cause of harm necessary to order an interim injunction. On these grounds the Market Court revoked the interim injunction rendered by the District Court.
