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Pre-Action Disclosure not helped by Aggressive Marketing

日期: 13 May 2019

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Pharmacy2u Ltd (P2U), upset about a notice the National Pharmacy Association (NPA) sent to its members, attempted to get the NPA to release details of its members so that it could (presumably) intimidate them individually. The notice in question contained factual statements about Pharmacy2U Ltd's past conduct. Finding in favour of the NPA, Master Clark dismissed P2U’s application (Pharmacy2u Ltd v National Pharmacy Association [2018] EWHC 3408 (Ch)).

 

P2U, the UK’s largest online pharmaceutical retailer, owns a EUTM for the word PHARMACY2U, and alleged that the National Pharmacy Association (NPA), a long established trade association representing independently owned pharmacies, had infringed its mark by (i) using it in a notice which was sent to all NPA members from about late November 2017 onwards; and (ii) making the notice available to download on its website.

 

NPA’s notice contained a number of factual statements about P2U (see below). Master Clark noted that P2U did not dispute the truth of the statements in the notice. Also, P2U’s skeleton argument referred to the legislative provisions governing UK trade marks despite the fact that the Mark was a EUTM. Nonetheless, Master Clark decided to proceed on the basis that P2U had arguable claims of infringement under Article 9(2)(c) EUTM and contravention of Article 4 of the Comparative Advertising Directive (Directive 2006/114/EC – the “CAD”).

 

pharmacy2u_150

 

P2U sought an order that NPA disclose all documents in its possession containing:

 

  1. the names and contact details of all third parties to whom NPA had sent the notice; and
  2. the names and contact details of all third parties who had downloaded the notice from NPA’s website.

 

In Master Clark’s judgment, the disclosure sought wasn’t necessary or desirable, for a number of reasons, including the fact that:

 

  • it was not necessary for P2U to join the members for its claim to be fairly resolved;
  • bringing a claim against each of the 3,202 NPA members for each (minor) act of infringement would be disproportionate, and not an appropriate use of the court’s resources, unless it was a remedy of last resort (which it was not); and
  • P2U was not seeking to write to the members simply to set the record straight, rather it would allege that the member was in fact a wrongdoer, against whom a claim could be brought. Assuming that NPA had a good defence, there was a serious risk that P2U would be able to “pick off” the individual members, without ever having to submit to a judicial determination of the merits of its claim.

 

Master Clark went on to say that her concerns were reinforced to a degree by P2U’s conduct to date, particularly in relation to evidence given by Ian Strachan. Mr Strachan represents the NPA in North East England and has four pharmacies in the North West: “When [P2U] first wrote to NPA in December 2017, it alleged that the statements in the notice were untrue, and threatened claims for defamation and malicious falsehood. Following NPA’s solicitors’ response, these were withdrawn." In addition, Mr Strachan said that P2U’s solicitors wrote to him personally, threatening to make a complaint about him to the General Pharmaceutical Council. Finally, Mr Strachan also provided evidence of a GP practice which, after displaying the Notice, received correspondence described as “very intimidating”, instructing them to remove it or risk being reported to the General Medical Council. Accordingly, he was not willing to make an order for the pre-action disclosure sought by P2U.

 

Comment

P2U had been accused of “blitzing” people with unsolicited marketing material inviting patients to get their repeat prescriptions from P2U as opposed to their local NHS community pharmacy. The NPA released the notice at issue in these proceedings because it was concerned that elderly and vulnerable people might confuse P2U’s correspondence for official NHS correspondence, resulting in the cancellation of longstanding prescription arrangements. The “very intimidating” correspondence sent by P2U to a GP practice which had displayed the NPA’s notice did not assist the claimants. In the writer’s view, P2U’s application was quite rightly dismissed, given that P2U’s previous aggressive conduct had been less than desirable.

 

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