Parallel Importation Of Pharmaceutical Products

This article first appeared in World Trademark Review issue 62, published by Globe Business Media Group - IP Division. To view the issue in full, please go to www.worldtrademarkreview.com.

The question of parallel importation of pharmaceutical products has recently been considered by the Chancery Division of the UK's High Court in the case of Flynn Pharma Limited v Drugsrus Limited and Others. The decision provides a useful review of English law on parallel importation of pharmaceutical products. The decision of the High Court is currently under appeal and is listed to be heard in late February or early March 2017.

Flynn Pharma is a speciality pharmaceutical company that trades in both generic medicines and speciality brands. Its business model is to acquire marketing authorisations and to sell branded products once the patents on the products have expired - although generic versions of the products in question are usually competing in the market, there is still a demand for the branded product as they are often still prescribed by name by doctors. Flynn Pharma are generally responsible for the manufacture as well as the marketing and distribution of those products.

Drugsrus is a wholesaler of pharmaceutical products. The second defendant was a company that was set up to apply for and hold the product licences for parallel imports (PLPIs).

Flynn Pharma holds the UK marketing authorisation for a drug called phenytoin sodium, which is marketed in the UK as "Phenytoin Sodium Flynn". Flynn are therefore responsible for making sure that the regulatory requirements in relation to the quality of the manufacture of the product and the marketing of the product in the UK are met. In this case Flynn Pharma contracts out the manufacture of the product but remains responsible for the quality of the product.

Before September 2012, all phenytoin sodium supplied in the UK was made by Pfizer and sold under Pfizer's brand name EPANUTIN. Flynn Pharma and Pfizer entered into various agreements so that the marketing authorisations were assigned to Flynn Pharma in the UK, while Pfizer continued to market the product in some other Member States as EPANUTIN.

Drugsrus planned to import into the UK Epanutin which was being sold in other EU Member States, rebranded as "Phenytoin Sodium Flynn".

Flynn Pharma, the proprietor of a UK and an EU trade mark for the word FLYNN in class 5 for pharmaceutical products, objected to Drugsrus' plan to apply their trade mark...