A High Court damages enquiry arising from 8PM being wrongfully injuncted in a series of trade mark infringement actions brought by the Eli Lilly, Pfizer, AstraZeneca and Merck pharmaceutical groups (see the entry below). The judgment creates new law by assessing damages on an equitable rather than contractual or tortious basis allowing the judge greater flexibility in reaching a fair award. This included holding that certain claimants were liable for losses incurred by 8PM before their particular injunctions had been granted. A second interesting aspect was the claimants' argument that 8PM was barred from recovering damages because the Canadian internet pharmacy trade, in which it is involved, is illegal in the US. This argument failed. Having undertaken to compensate 8PM if the injunctions turned out to be wrongly granted, the pharma companies could not now turn round and say that the undertakings were unenforceable.
In any event, the US offences were not proven to have extra-territorial effect so that 8PM's acts, which were legal in the UK, were not made illegal by US law. But, even if they were, 8PM did not have to rely on those illegal acts in support of its claim so that the public policy did not apply.
The Fasken Martineau team, Ralph Cox and Yasmina Hadded, worked with intellectual property consultant, Anna McKay, on the enquiry.