Upjohn Co. v. Apotex Inc.
T-429-93
MacKay J.
4/11/93
17 pp.
Application for interlocutory injunction restraining defendant from infringing plaintiffs' copyright in certain works -- Plaintiffs marketing and selling in Canada since 1986 minoxidil topical solution called ROGAINE-Defendant granted Notice of Compliance authorizing it to manufacture and sell in Canada similar product called APO-GAIN -- Plaintiffs claiming for infringement of copyright in text used on box and container label in which ROGAINE product distributed and sold -- Text of information on box and container, and text of booklet for patient/consumer information within box for APO-GAIN substantially same as texts of works in which plaintiffs claim copyright -- Arguments advanced by defendant contesting validity of copyright interests claimed by plaintiffs not specious or pro forma arguments -- Plaintiffs' action raising serious issues for trial -- Threshold test, in considering application for interlocutory injunction, met -- Plaintiffs' argument casting doubt as to whether damages adequate remedy for loss to them-Damages could be adequate remedy despite difficulty of calculating profit arising for defendant by wrongful use of works in which plaintiffs have copyright -- Loss to plaintiffs pending trial would be adequately compensated in damages -- No evidence of irreparable harm if injunction pending trial not now issued-Defendant would not suffer irreparable harm not adequately compensated by damages if injunction now awarded and later decided such relief unwarranted -- Loss to defendant from delay, if injunction later found to be unwarranted, could be reasonably compensated in damages -- Balance of convenience not supporting granting of interlocutory injunction -- Application dismissed.