The High Court has dismissed an action for passing off bought by Glaxo against Sandoz in respect of use of the colour purple for its AirFluSal Forspiro inhaler (shown below).

 

 

In order to succeed, Glaxo had to demonstrate that, at the relevant date, the colour purple was distinctive of the Seretide Accuhaler (shown below) in the mind of the relevant public.

 

 

Unfortunately for Glaxo, much of its case on goodwill had been based on survey evidence which failed to comply with “the Whitford Guidelines” and on evidence of marketing efforts which did not assist because the Seretide Accuhaler could not lawfully be advertised directly to patients.

Lord Justice Arnold found that the colour purple was viewed by patients as merely indicating an inhaler with a particular active ingredient as opposed to trade origin and, therefore, Sandoz had a legitimate reason for choosing that colour.

 

Please find the link to this case here.

 

This case also forms the subject of a case comment written by Katie Cameron and Dr. Janet Strath in the Journal of Intellectual Property Law & Practic, Volume 15, Issue 1, January 2020, Pages 11–14.