Janssen Pharmaceutica v Pfizer Pty Ltd

[1985] FCA 697

IN THE FEDERAL COURT OF AUSTRALIA	) )
NEW SOUTH WALES DISTRICT REGISTRY	) No. G.220 of 1985
)

DIVISION GENERAL )

JANSSEN PHARMACEUTICA

PTY. LTD.

Applicant

PFIZER PTY. LTD.

Respondent

MINUTE OF ORDER OF THE COURT

Judqe Makins Order: Burchett J.

OF AUSTRAUA L.

Date Order Made: 19 November 1985

2 8 JAN 2003

Where Made : Sydney

THE COIJRT ORDERS THAT:

(1) The Respondent by' itself its servants and agents be

restrained from publishing or disseminating the video

recording entitled "Worms - Knowledge & Treatment" ("the

video") and the manual entitled "Pfizer Pharmacy

Reference Manual" ( "the manual" 1 and from causing or

permitting to be broadcast the television advertisement

made on behalf of the Respondent in relation to its

product "Combantrin" ( "the television advertisement")

and such of the radio advertisements broadcast on behalf

of the Respondent as suggest expressly or by implication

that there three a common human-infesting

gastro-intestinal nematode worms in Australia ("the

radio advertisements").

The Respondent forthwith cause such steps to be taken as

may be necessary to recall and procure to be redelivered

2.

to the Respondent all copies of the video and so far as

may be in its power the manual which have been published

and disseminated by the Respondent within Australia and

to prevent the future broadcast of the television

advertisement and the radio advertisements.

The Respondent forthwith cause to be destroyed all

copies of the video and the manual in its possession

save for two ( 2 ) copies of the video and five ( 5 ) copies

of the manual which it may keep €or its own record

purposes only, and forthwith upon recall of any video or

manual previously disseminated cause such video or

manual to be destroyed, destruction in respect of the

video €or the purposes of this order to include the

wiping by magnetic means of the material recorded on the

cassette tape forming part of the video.

The Respondent by itself its servants and agents be restrained from without the prior leave of the Court

publishing or making by any medium any of thc

representations or any representations which are

substantially the same as the representations set out in

the Schedule to the Amended Application. Where a

representation in the Schedule i s expressed in the

alternative this order refers to each of the alternative

versions of the representation.

(5) The Respondent forthwith inform the applicant by

affidavit of all persons to whom the Respondent is aware

after all reasonable enquiry that it has delivered or

caused t o be delivered a copy	of the video	or the manual
or either of them.

The Respondent forthwith cause published be to

prominently in "Pharmacy Trade" and "Australian Journal

of Pharmacy" an announcement in the following terms:-

"IMPORTANT ANNOUNCEMENT BY PFIZEX PTY.

LIMITED

The Federal Court of Australia has

ruled that Pfizer Pty. Limited in its

recent advertising and promotion of

Combantrin has engaged in conduct that

is misleading or deceptive in that it

has made statements or representations

including the following:

(1) That there are only three types of

human-infesting gastro-intestinal

nematode worms in Australia - i.e.

threadworm, roundworm and hookworm a

3 .

- whereas in fact, there are at

least five such types of worms -

i.e. threadworm,	roundworm,
hookworm,	and whipworm

Strongyloides stercoralis.

(ii) That threadworm, roundworm and

hookworm are common in Australia

whereas only threadworm is common

and roundworm and hookworm are

extremely rare.

Pfizer Pty. Limited will forthwith be ceasing and withdrawing any and all

such advertising and promotional

material, including a manual entitled

"Pfizer Pharmacy Reference Manual", a

television advertisement, a number of

radio advertisements and a recently

released pharmacyfconsumer video.

Pf izer Pty. Limited requests

pharmacists cease to further

distribution a d of use such

promotional m terial pending ts

collection by a Pfizer Pty. Limited

representative. "

as well , as cause to be published prominently in a

national daily newspaper an announcement in the

following form:-

'' IMPORTANT ANNOUNCEMFSJT BY PFIZER PTY.

LIMITED

The Federal Court has ruled that Pfizer

Pty. Limited in its recent advertising

and promotion of Combantrin has engaged

in conduct hat is misleading or

deceptive that in has i made

statements or representations including

the following:

(1) That there are only three types of

human-infesting gastro-intestinal

nematode worms in Australia - i.e.

threadworm, roundworm a

hookworm, - whereas in fact, there	are at least five such types of
worms - i.e. threadworm, roundworm, hookworm. whipworm and
Strongyloides stercoralis.

4.

(ii) That hreadworm, roundworm and

hookworm are common in Australia

whereas only threadworm is common

and roundworm and hookworm are

extremely rare. I'

The Respondent pay the Applicant's costs of these

proceedings.

Liberty to apply on 21 days notice in the event of a

change of circumstances.

The orders made in paragraphs 5 and 6 hereof be stayed

for 14 days from 19th November 1985.

The operation of the order made in paragraph 4 hereof be

suspended until 19th December, 1985, insofar as any

representations set out on the sachet dispensers

exhibited to the	affidavit of Xenneth James Moran sworn
on 16 November,	1985, and filed in these proceedings,

and marked with the letters "KJM-1" and "XJM-2"

respectively are concerned.

NOTE: Settlement and entry of orders is dealt with in Order 36

i of the Federal Court Rules.

. .