Procter & Gamble Pharmaceuticals Canada, Inc. v. Novopharm Ltd.
T-353-96
Wetston J.
5/7/96
22 pp.
Application for interlocutory injunction restraining defendant, until final determination of plaintiff's action, from presenting defendant's own pharmaceutical product, "Novo-5-ASA" in get-up confusingly similar to plaintiff's "5-ASA"-Allegation of passing-off, misleading advertising and copyright infringement-Application dismissed-Serious issue to be tried with regard to passing-off claim under Trade-marks Act, s. 7(b), misleading advertising claim under Trade-marks Act, s. 7(d) and Competition Act, s. 52(1)(a) and copyright infringement with respect to product monograph-With respect to irreparable harm, no evidence other than opinions of various corporate and expert witnesses to support assertion damages arising from deception or confusion not quantifiable-Evidence of irreparable harm too speculative-Plaintiff has not presented sufficient evidence harm to its goodwill or reputation would arise, and would be irrevocable-Also, losses could be adequately compensated by damages reasonably calculated in usual manner-In view of Health Protection Branch's approval of defendant's product as bioequivalent to plaintiff's, insufficient evidence to establish patients who are unknowingly switched from plaintiff's product to defendant's would suffer harm, or would experience decrease in effectiveness of treatment-Accordingly, in context of application for interlocutory relief, Court unable to find irreparable harm on basis of harm to plaintiff's sales or reputation as result of representations made by defendant with respect to own product-Balance of convenience not weighing greatly in favour of one party over other-Consequently, more prudent to maintain status quo until trial-Trade-marks Act, R.S.C., 1985, c. T-13, s. 7(b), (d)-Competition Act, R.S.C., 1985, c. C-34, s. 52(1)(a).