Court of Appeal dismisses appeal against decision that various uses of ‘Merck’ breached an injunction (Merck v Merck)
IP analysis: The Court of Appeal held that the defendants (collectively ‘Merck US’) had breached the injunction granted by the High Court following the long-running trade mark dispute with the claimants (‘Merck Global’). In those proceedings, the court had been asked to determine various questions relating to the interpretation of co-existence agreements between the two pharmaceutical companies. Lord Justice Arnold, giving the leading judgment with which Lord Justice Philips and Lady Justice Andrews agreed, rejected all four grounds of Merck US’s appeal. In doing so, the Court of Appeal confirmed that an application for declaratory relief is an appropriate response to a breach of an injunction, even if proceedings for contempt of court are a remedy which is available to the aggrieved party. This is of note to practitioners as it means parties are not required to commence proceedings for contempt of court, which must be proved at the criminal standard. The court also provided helpful clarification on ’UK-specific’ in the context of website targeting and the definition of ‘inadvertent error’. These comments will be of particular interest to those advising on online enforcement issues, and those advising on global co-existence agreements. Written by Sean Ibbetson, senior associate and Timothy Minton, trainee at Bristows LLP.