Unipharm sells a drug for treatment of Alzheimer’s disease under the brand name Memorit and holds a trademark for same. Anderson Pharmaceuticals, ownded by Jonathan Shreiber, started to sell a herbal remedy for Alzheimer’s disease under the name Memorix. Furthermore, on their website, Anderson indicated that Memorix was equivalent to Memorit.
Not surprisingly, Unipharm sued, claiming trademark infringement, unjust enrichment and passing off. The Petach Tikveh (Central) District Court ruled that the herbal remedy be removed from the shelves, and destroyed or rebranded with an acceptable name, and awarded NIS 150,000 statutory damages to Unipharm.
Shreiber appealed to the Supreme Court, arguing that his remedy Memorix was a liquid, whereas the medication Memorit was a capsule. Although both were available from pharmacists, the herbal remedy Memorix did not require a prescription, whereas Memorit did. Unipharm countered that in absence of evidence of efficacy of the herbal treatment, their brand name Memorit was being diluted.
The Supreme Court accepted that the Tel Aviv District Court had weighed up the evidence and explained its reasoning and thus there was no reason to retry the case, since Appeals are not for examining factual evidence, but only to clarify legal points misapplied. However, as to the ruling for damages, the Supreme Court noted that Unipharm did not claim loss of sales for Memorit, and the maximum statutory damages under the trade laws was NIS 100,000, without it generally being possible to claim damages for the same action. Furthermore, the court of first instance did not provide any explanation of where the figure NIS 150,000 came from. Consequently, the Supreme Court through out the damages, but upheld the legal costs of the NIS 50,000 for the original decision, and awarded a further NIS 25,000 in costs to Unipharm for having to respond to the appeal.
Appeal 5671/11 Anderson Medical and Jonathan Shreiber vs. Unipharm, 11 July 2012