Glaxo Wellcome UK Ltd v Sandoz and Vectura [2019] EWHC 2545 (Ch)
Passing off by use of a similar get up, passing off by equivalence
Glaxo sold its salmeterol/fluticasone combination product (under the name Seretide) in a purple inhaler. Following expiry of the relevant patent protection Sandoz launched a salmeterol/fluticasone combination inhaler. Although a different shape, Sandoz’ inhaler was also predominantly purple. Both inhalers were prescription only medicines, prescribed for the treatment of asthma and COPD. Glaxo alleged passing off based on the “get up” of its inhaler. The case was put two ways: misrepresentation as to trade origin and equivalence. Glaxo also alleged that Sandoz (and Vectura the manufacturer of the device) had deliberately intended to deceive health care professionals and patients in developing a purple inhaler. The defendants argued that purple was chosen to indicate the active ingredients in keeping with an established practice of colour coding inhalers e.g. brown inhalers for maintenance therapy and blue inhalers for rescue therapy.
The claim was dismissed in its entirety.