GlaxoSmithKline fails to get injunction over Seretide inhaler

A major pharmaceutical company which alleges trademark infringement has been refused an injunction preventing the roll-out by a rival of an inhaler for asthmatics.

The injunction was sought pending determination of the dispute in a full court hearing.

GlaxoSmithKline (GSK) claims Rowex Ltd is preparing to put on the market a product similar in its packaging and colour to Glaxo's Seretide inhaler, the fourth highest selling pharmaceutical product in the world with more than $62 billion in global sales, including Ireland.

The UK-based Glaxo Group, along with GSK (Ireland) Ltd, trading as Allen and Hanburys, sought an injunction in the Commercial Court preventing Rowex, a member of the Rowa group of pharmaceutical companies, proceeding with the launch of an inhaler called "AirFluSal".

Mr Justice Max Barrett refused to grant the injunction but adjourned the matter to allow the parties address him about whether there should be a stay on his decision pending appeal.

He will hear arguments in relation to EU community trade mark regulations as to whether a trademark owner is entitled to provisional and protective measures for the duration of the stay.

GSK’s action now proceeds as normal through the Commercial Court.

GSK says it has built up a valuable intellectual property over the last 15 years in the use of “the unique and distinctive colour purple” on its Seretide inhaler.

The AirFluSal inhaler, which contains the same generic active ingredient as Seretide, is also to be packaged using the colour purple, it says.

This is a “blatant an unlawful attempt to piggyback on the huge investment” made by GSK in relation to Seretide, it is alleged.

While there are multiple products with the same active ingredient already on the market, they have not copied the purple colour and GSK’s objection is to the combination by Rowex of use of the colour purple with a device similar of shape to the Seretide inhaler.

If Rowex was to change the colour of its inhaler, so that purple was no longer used, GSK would have no objection to the shape of the AirFluSal device, the company said.