This case concerns an ongoing and large scale action for Trade Mark infringement and passing off brought by Glaxo against Sandoz in relation to asthma inhalers. The UK action forms part of a series of international disputes concerning these pharmaceutical products. Glaxo owns a EUTM colour per se trade mark which is visually represented by a photograph of an inhaler in two shades of purple. Glaxo allege trade mark infringement of this mark and passing off in relation to its Seretide Acuhaler asthma inhalers as against Sandoz and its recently launched competing Airflusal Forspiro asthma inhaler. Sandoz counterclaimed for invalidity of the Glaxo EUTM colour per se mark. Sandoz brought an application for summary judgment on its counterclaim for invalidity, on the ground that the EUTM registration related not to a single sign but to a multiplicity or class of different signs and its registration was therefore in contravention of Arts 4 and 7(1)(a) of the EU Trade Mark Regulation. The case came before HHJ Hacon sitting in the High Court. Sandoz was successful with the Court finding Glaxo’s EUTM invalid. Glaxo have applied to the Court of Appeal for permission to Appeal.
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