Intellectual Property Enterprise Court

IP-2024-000024 - [2024] EWHC 951 (IPEC)

Fecha: 26-Abr-2024

Defendant’s alleged derogatory statements

(ii)

Defendant’s alleged derogatory statements

79.

The Claimant submitted that the Defendant has made derogatory statements about the ClearPetra Sheath to the market. These are said to concern the allegation (now accepted to be wrong) that the ClearPetra Sheath does not have an internal coil and is not as safe as the Seplou Sheath. The Claimant argued that the effect of the injunction will be to keep the Defendant off the market, with the result that the Defendant will have no real motive to make such statements in the future. Note that the Claimant does not pursue a claim for trade libel or malicious falsehood and accepts that it would be difficult to get an interim injunction for such a claim in any event.

80.

In my judgment, this argument is fundamentally flawed for three reasons.

First, the argument is not supported by any evidence that the Defendant has made derogatory statements to the market about the ClearPetra Sheath in the past. I set out the relevant evidence from Mr George Reynolds at paragraph 47 above. In that evidence, he reports what the Defendant has been told from others, not what it has been saying to the market. When I put this to Counsel for the Claimant, he submitted that if the Defendant is willing to make “derogatory” statements in its evidence to the court, I could infer that it is what it is also telling the marketplace. However, there is no evidence to support that inference and I reject the submission.

ii)

Second, the argument is not supported by any evidence that the Defendant will make derogatory statements in the future. I cannot see why it would be in the Defendant’s interest to do so, since it could undermine the value of the market overall. Moreover, the Defendant now accepts that the ClearPetra Sheath comprises a coil and has abandoned its case that it is not as safe as the Seplou Sheath.

iii)

Third, even if the Defendant had made or was threatening to make derogatory marketing statements about the ClearPetra Sheath (contrary to my assessment of the evidence), I do not think that this would justify the grant of an injunction to restrain its sale or supply of the Seplou Sheath. There is not a sufficient nexus between these activities. Moreover, the injunction which the Claimant seeks would not stop the Defendant making derogatory statements in any event.