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

The parties addressed this analysis by reference to Period 1 and Period 2 separately, and it is convenient for me to do the same.

As to Period 1, it was accepted by the Defendant that a sale of the Seplou Sheath would otherwise be a sale of the Flexi ClearPetra (at least in the current market). As a result, counsel for the Claimant accepted, rightly in my view, that damages for Period 1 would be an adequate remedy.

In the circumstances, Period 2 was the focus of the Claimant’s submissions. It was argued that there were four ways in which the Claimant would (or would likely) suffer damage in this period which could not be adequately compensated by damages if an injunction was refused: (i) loss of market exclusivity; (ii) derogatory marketing statements; (iii) price depression; (iv) quantification of damages. I shall address the points in that order.