A-34-83
Syntex Inc. and Syntex (U.S.A.) Inc. (Respond-
ents) (Plaintiffs)
v.
Apotex Inc. (Appellant) (Defendant)
Court of Appeal, Urie, Stone JJ. and Cowan
D.J.—Toronto, June 22; Ottawa, July 10, 1984.
Trade marks — Interim injunction — Appeal from grant of
interim injunction pending outcome of action for infringement
— Whether "serious issue" or "prima facie case" test appro
priate — Appellant failing to meet either test — Furthermore,
grant of interim injunction having effect of disposing of action
finally — Appeal allowed, interim injunction discharged —
Trade Marks Act, R.S.C. 1970, c. T-10, ss. 2, 4(1), 22(1) —
Patent Act, R.S.C. 1970, c. P-4, s. 41(4) — Food and Drugs
Act, R.S.C. 1970, c. F-27, s. 3 — Health Disciplines Act,
R.S.O. 1980, c. 196, s. 155.
The appellant, a drug manufacturer, was selling the drug
Naproxen in Canada under its own brand name. To promote its
sales, the appellant distributed to pharmacists throughout
Canada a one-page flyer with a tear-off order form. The flyer
suggested that when a client presented a prescription for
"Naprosyn", the trade mark used by the respondents to sell
Naproxen, the pharmacist could, subject to provincial regula
tions, substitute the appellant's brand for the respondents'.
After bringing an action for infringement of the trade mark,
the respondents applied for and obtained an interim injunction
restraining the appellant from using their trade mark.
This is an appeal from that decision. The appellant argues
that the flyer cannot be said to contravene subsection 22(1) of
the Trade Marks Act, that the wrong threshold test was
applied in granting the injunction and that the respondents
would not have suffered irreparable harm had the injunction
not issued.
Held, the appeal should be allowed and the interim injunc
tion discharged.
Based on Clairol International Corporation et al. v. Thomas
Supply & Equipment Company Limited, et al., [1968] 2 Ex.
C.R. 552, where the presence of the plaintiffs' marks on
comparative shade charts of the defendants' brochures were
held not to constitute "use", it is difficult to see how the
argument of a "use" contrary to subsection 22(1) could be
sustained at trial. The argument that the presence of the
respondents' name on the appellant's flyer infringes the right to
exclusive use (section 19) or amounts to advertising a product
in association with a confusing trade mark (section 20) is not
likely to convince a trial judge since the trade mark "Napro-
syn" is clearly used so as to identify the respondents' product
for purposes of comparison.
There remains to be determined which of the "serious issue"
and the more demanding "prima facie case" test is the appro
priate threshold test to be applied in a case of this kind before
an interim injunction will issue. The "serious issue" test pro
pounded in American Cyanamid may not be suitable in all
situations, such as where the granting of the interim injunction
would have the effect, as it has had in this case, of disposing of
the action finally.
Although the "prima facie case" test seems to be the proper
one to be applied in this case, in any event, there is not here
either a "serious issue" nor a "prima facie case" for an
injunction to be tried based upon the alleged violation of the
relied-upon provisions of the Trade Marks Act.
CASES JUDICIALLY CONSIDERED
APPLIED:
Clairol International Corporation et al. v. Thomas
Supply & Equipment Company Limited, et al., [1968] 2
Ex.C.R. 552; Chitel et al. v. Rothbart et al. (1982), 39
O.R. (2d) 513 (C.A.).
REFERRED TO:
Yule Inc. v. Atlantic Pizza Delight Franchise (1968) Ltd.
et al. (1977), 17 O.R. (2d) 505 (I-I.C.); General Mills
Canada Ltd. v. Maple Leaf Mills Ltd. (1980), 52 C.P.R.
(2d) 218 (Ont. H.C.); Source Perrier (Société Anonyme)
v. Canada Dry Ltd. (1982), 64 C.P.R. (2d) 116 (Ont.
H.C.); Tarra Communications Ltd. et al. v. Corn-
municomp Data Ltd. et al. (1973), 1 O.R. (2d) 682
(H.C.); Fellows & Son v. Fisher, [1976] Q.B. 122
(C.A.); N.W.L. Ltd. v. Woods, [1979] 1 W.L.R. 1294
(H.L.); Fruit of the Loom, Inc. v. Chateau Lingerie Mfg.
Co. Ltd. (1982), 63 C.P.R. (2d) 51 (F.C.T.D.); Hoff-
man-LaRoche Ltd. v. Apotex Inc., Supreme Court of
Ontario, White J., April 25, 1983 (unreported); Smith,
Kline & French Canada Ltd. v. Novopharm Ltd. (1983),
72 C.P.R. (2d) 197 (Ont. H.C.); Syntex Inc. v. Novop-
harm Ltd. et al. (1983), 74 C.P.R. (2d) 110 (Ont. H.C.);
American Cyanamid Co. v. Ethicon Ltd. (1975), A.C. 396
(H.L.).
COUNSEL:
R. G. McClenahan, Q.C. and R. S. Jolliffe
for respondents (plaintiffs).
W. A. Kelly, Q.C. and M. Johnston, Q.C. for
appellant (defendant).
SOLICITORS:
Gowling & Henderson, Ottawa, for respond
ents (plaintiffs).
Fasken & Calvin, Toronto, for appellant
(defendant).
The following are the reasons for judgment
rendered in English by
STONE J.: This appeal is against a judgment of
the Trial Division [order dated December 23,
1982, T-9100-82, not reported] which granted an
interim injunction restraining the appellant, its
servants and agents, from using the trade mark
"Naprosyn" in connection with the promotion, use
or sale of the appellant's product. A second appeal
[Smith Kline & French Canada Ltd. v. Apotex
Inc.], in Court No. A-509-83, was heard at the
same time as this appeal. In that case, the Trial
Division [order dated April 11, 1983, T-223-83,
not reported] followed the decision below and
issued an interim injunction in the same terms.
These reasons, to the extent applicable, will apply
equally to the appeal in Court No. A-509-83 and a
copy will be filed in that case.
The appellant distributes and sells pharmaceuti
cal products in Canada. Since June of 1974 the
first respondent has distributed and sold in Canada
the drug Naproxen under the brand name "Napro-
syn". The second respondent is the registered
owner of the trade mark "Naprosyn" as registered
under the Trade Marks Act.'
On June 30, 1981 the appellant was granted a
licence by the Commissioner of patents pursuant
to subsection 41(4) of the Patent Act 2 to import
Naproxen into Canada and to manufacture it into
dosage form for sale. The licence required the
appellant to pay a 4% royalty to the second
respondent. In August of 1982 the Health Protec
tion Branch of the Department of National Health
and Welfare issued to the appellant a "Notice of
Compliance" pursuant to the Food and Drugs
Act 3 thereby clearing the way for it to sell and
distribute Naproxen in Canada. The appellant
took "Apo-Naproxen" as the brand name of its
' R.S.C. 1970, c. T-10.
2 R.S.C. 1970, c. P-4.
3 R.S.C. 1970, c. F-27.
product and also registered it as a trade mark in
Canada.
In October of 1982 the appellant distributed a
one-page flyer to hospital and retail pharmacists
throughout Canada designed to promote the sale
of Naproxen under the "Apo-Naproxen" brand
name. By law advertising of the product to the
public was prohibited. 4 In its flyer, introduced by
the words "the obvious choice", two containers of
Apo-Naproxen tablets, size 125 mg and 250 mg,
are depicted in juxtaposition with a note with
"Naprosyn 250 mg" written on it. There then
follows a message reading:
Now pharmacists have a choice* when filling a prescription for
Naprosyn.
Apotex is proud to have once again set the pace in development
and distribution of an alternative for a major brand. Apo-
Naproxen-125 mg pale green oval biconvex tablet, engraved
APO-125 and 250 mg yellow oval biconvex tablet, engraved
APO-250—provides substantial savings—without compromise.
Available now from Apotex, Canada's fastest growing leader in
prescription drugs.
*Subject to Provincial Regulations.
The words "special introductory offer" appear to
the right of this message together with pricing
details as well as addresses and telephone numbers
in Ontario, Quebec, British Columbia, Manitoba
and Newfoundland. The appellant's name is
prominently displayed at the foot of the flyer. A
perforated line extends across the page. Below it
appears a tear-off order form for the obvious
convenience of the reader.
To better appreciate the purpose of the flyer, it
is necessary to understand the purport of certain
provincial legislation calling for the filling of pre
scriptions, whether written generically or by brand
name, by pharmacists with a drug deemed by such
legislation to be therapeutically interchangeable
with the one prescribed. Such legislation exists in
one form or other in most provinces. In 1974 the
Province of Ontario enacted the Health Disci
plines Act. 5 It allows [section 155] a pharmacist to
select and dispense an interchangeable product, if
such product was listed in the provincial Formu-
4 Ibid., section 3.
5 R.S.O. 1980, c. 196.
lary, at a lower cost than the drug prescribed.
Where a drug is prescribed by its generic name,
the pharmacist is required to substitute a lower
priced therapeutically interchangeable drug; where
it is prescribed by a brand name, the pharmacist
may do likewise. Legislation in Manitoba, New
Brunswick, Newfoundland and Saskatchewan is to
like effect. In British Columbia and Alberta phar
maceutical products become therapeutically inter
changeable upon issuance of a notice of compli
ance by the Health Protection Branch in respect of
a new drug. No legislation on the subject existed in
Nova Scotia or Prince Edward Island. Under the
Ontario Drug Benefit plan the Government of
Ontario pays pharmacists the price of a drug
dispensed to a senior citizen or a welfare recipient
provided it is the lowest priced therapeutically
interchangeable product.
In November of 1982 the respondents com
menced this action. They allege that through much
effort and expenditure of much money the
respondents had acquired and enjoyed a valuable
goodwill and reputation for its brand of Naproxen
tablets with physicians, pharmacists and consum
ers. They further allege that use by the appellant
of the trade mark "Naprosyn" put the reputation
and goodwill associated with it at great risk. In
particular, they allege in paragraphs 12-15 of the
statement of claim:
12. The Defendant, without the authority of the Plaintiffs, or
either of them, has improperly and unlawfully used the trade
mark NAPROSYN in its advertising in a generic manner without
in any way identifying it as a trade mark or as the property of
the Plaintiff Syntex (U.S.A.) Inc.
13. The Defendant in its said advertising has improperly and
unlawfully used the trade mark NAPROSYN in conjunction with
false or misleading statements to pharmacists across Canada
informing then [sic] that they can legally fill prescriptions
written for NAPROSYN with the Defendant's naproxen product,
when it would be contrary to the laws of eight of the ten
Canadian provinces to do so.
14. By reason of its aforesaid actions the Defendant has
unlawfully made use of the registered trade mark NAPROSYN in
a manner likely to have the effect of depreciating the value of
the goodwill attaching thereto.
15. By reason of its aforesaid actions the Defendant has
infringed the right of the Plaintiff Syntex (U.S.A.) Inc. to the
exclusive use of its registered NAPROSYN trade mark to the
detriment of the registered owner and the registered user of the
said trade mark and has unlawfully advertised its naproxen
product in association with the registered trade mark
NAPROSYN.
The respondents claimed a declaration as well as
an injunction and an interim injunction. By its
notice of motion dated November 29, 1982, it
requested an order:
1. Restraining the Defendant until the final disposition of this
action, by itself, its servants, agents and workmen or otherwise
(a) from using the trade mark NAPROSYN in connection
with the promotion, use-or sale of the Defendant's products;
(b) from using any of Plaintiffs' trade marks, including the
trade mark NAPROSYN, in a headline, sub-headline or graph
ics in any of the Defendant's advertising, packaging or
labelling material;
(c) from distributing or otherwise using any advertisement or
other literature
(i) that makes reference to or use any of the Plaintiffs'
trade marks, including the trade mark NAPROSYN;
(ii) that has the effect of damaging, diluting or otherwise
depreciating the value of the goodwill in the Plaintiffs'
trade marks, including the trade mark NAPROSYN; and
(iii) that uses any of the Plaintiffs' trade marks, including
the trade mark NAPROSYN, in a generic manner;
(d) from distributing or otherwise using any advertisement or
other literature that promotes, directly or indirectly, the
substitution of Apo-Naproxen in filling a prescription for the
Plaintiffs' NAPROSYN
(i) in any province that does not authorize such
substitution;
(ii) in any province that requires listing in a provincial
formulary before allowing such substitution until such
listing occurs; and
(iii) in any province that prohibits such substitution;
(e) from using any of the Plaintiffs' trade marks, including
the trade mark NAPROSYN, as part of a scheme or plan
designed to promote the sale or use of the Defendant's
products as and for those of the Plaintiffs.
In granting the interim injunction on December
23, 1982, the learned Judge below, after quoting
the provisions of subsection 22(1) of the Trade
Marks Act, gave as his reasons:
The implications of that provision were canvassed by Thurlow
J., as he then was, in Clairol International Corporation et al. v.
Thomas Supply & Equipment Company Limited, et al.,
[1968] 2 Ex.C.R. 552, at pages 569 to 576. Nothing in the
provisions of the Patent Act authorize a compulsory licensee to
appropriate the licensor's trade mark or to otherwise use it in a
manner prohibited by the Trade Marks Act.
There is a clearly serious issue to be tried and the damages
suffered by the plaintiffs, if the defendant is permitted to
continue its present promotion will be difficult, if not impos
sible, to assess. The balance of convenience lies in favour of an
interim injunction issuing.
The appellant takes issue with the correctness of
these conclusions. It says that they disclose three
separate errors. First, it says that the content of
the flyer cannot be said to contravene subsection
22(1) of the Trade Marks Act; secondly, that the
wrong threshold test was applied in granting the
interim injunction and thirdly that the respondents
would not have suffered irreparable harm had the
interim injunction not issued. The respondents
contend that the learned Trial Judge correctly
concluded that the appellant had used the trade
mark "Naprosyn" in its flyer contrary to subsec
tion 22(1) of the Trade Marks Act and according
ly that he was correct in granting the interim
injunction on the basis that there is a "serious
issue to be tried".
These arguments call for an examination of
subsection 22(1) of the Trade Marks Act. It reads:
22. (1) No person shall use a trade mark registered by
another person in a manner likely to have the effect of
depreciating the value of the goodwill attaching thereto.
The presence in that subsection of the word "use"
might, on surface, lend some support to respond
ents' argument that a violation had occurred. On
the other hand, that word is defined in section 2 of
the Act:
2. In this Act
"use" in relation to a trade mark, means any use that by
section 4 is deemed to be a use in association with wares or
services;
In turn, subsection 4(1) of the statute reads:
4. (1) A trade mark is deemed to be used in association with
wares if, at the time of the transfer of the property in or
possession of such wares, in the normal course of trade, it is
marked on the wares themselves or on the packages in which
they are distributed or it is in any other manner so associated
with the wares that notice of the association is then given to the
person to whom the property or possession is transferred.
In my view, there is substance to the appellant's
argument that it will not be found at trial to have
contravened subsection 22(1) of the Trade Marks
Act. It is not contended the presence of the trade
mark "Naprosyn" in the appellant's flyer is cov
ered by the first part of subsection 4(1). That
being so, in order to succeed in its claim for a
permanent injunction based upon contravention of
subsection 22(1), the respondents will have to
bring their claim under the second part of the
same provision, "or it is in any manner so associat
ed with the wares that notice of the association is
then given to the person to whom the property or
possession is transferred." In addition, they will
have to show that there was use of the trade mark
"in a manner likely to have the effect of depreciat
ing the value of the goodwill attaching thereto."
The respondents put their case that the flyer
constitutes a "use" of the trade mark "Naprosyn"
in this way in paragraph 18 of their memorandum
of fact and law.
18. (a) The flyer is not simply an advertisement; it is a binding
`offer' made by the Appellant pursuant to which its customers
are expected to purchase and effect delivery to them of the
Appellant's product.
(b) The order form at the bottom of the flyer is the means by
which the pharmacist accepts the offer and, when completed
and mailed, obtains the product.
(c) The flyer is an integral part of the act or method of
transferring both property and possession and constitutes notice
of the association referred to in s. 4 of the Trade Marks Act.
It therefore says that "use" of the trade mark was
made within the meaning of subsection 22(1) and
that such use should be restrained.
I have difficulty in seeing how this argument
could be sustained at trial, but must desist from
offering a final view on the merits. It is not
necessary in a case of this kind that the respond
ents should show at this stage that they are bound
to succeed on this point at trial, but only that they
should make out a "serious" or "prima facie" case
depending on which of those two tests applies. In
order to show that the appellant has made use of
the trade mark "Naprosyn" within the meaning of
the second part of subsection 4(1) and, therefore,
as prohibited by subsection 22(1), the respondents
will have to show that the trade mark is so
associated with the appellant's wares in the flyer
that notice of such association would be given to
the person to whom property in or possession of
wares is transferred at the time of the transfer. In
my view that part of subsection 4(1) must not be
read in isolation and an attempt made to arrive at
the meaning of the words in which it is couched
without reference to the remainder of subsection
4(1). Use of a trade mark is deemed to have
occurred if at the time property in or possession of
the wares is transferred, in the normal course of
trade, it is "marked on the wares themselves or on
the packages in which they are distributed". The
mark thus may come to the attention of the trans-
feree in a direct way at the time of transfer which
is the critical point in time. Similarly, for there to
be a deemed use, notice of any other manner of
association is likewise to be given at that same
point in time. It might well be, for example, that
the appearance of a trade mark in written material
inserted in a package containing the wares even
though not marked on the package or on the wares
themselves would fall within the second part of
subsection 4(1), but it is not necessary to decide
the point.
Notwithstanding the dual purpose of the flyer as
a piece of promotional material and as an order
form, it seems to me that the presence of the trade
mark in it is no more a "use" in association with
the appellant's wares than was the presence of the
plaintiffs' marks on comparative shade charts of
the defendants' brochures in the Clairol case. 6
There, Thurlow J. [as he then was] rejected the
contention of a "use" within the meaning of sub
section 4(1) of the Trade Marks Act. He said (at
pages 564-565):
6 Clairol International Corporation et al. v. Thomas Supply
& Equipment Company Limited, et al., [1968] 2 Ex.C.R. 552.
Pausing here it is I think apparent that the presence of the
plaintiffs' marks on the defendants' packages is a use of those
marks "in association with" the wares in the defendants' pack
ages within the meaning of section 4(1) because, and as I see it,
simply because it is marked on the packages. The purpose for
which it is there is, I think, irrelevant on this point which, as I
read section 4 raises only the question of association or no
association and states that association is to be deemed to exist
in the three defined cases. To my mind, however, the presence
of the plaintiffs' marks on the comparative shade charts of the
defendants' brochures is not a use of such marks within the
meaning of section 4(1) since the brochures are neither the
wares themselves nor the packages in which the wares are
distributed and nothing that I would regard as notice to any
person purchasing the defendants' wares of any association of
the plaintiffs' marks with those wares, so far as I am aware,
ever occurs in any use to which the brochure or its chart can be
put at the time of the transfer of the property or possession of
the defendants' goods to their purchaser.
It seems to me that the respondents face consider
able difficulty in establishing at trial that the
presence of the trade mark "Naprosyn" in the
appellant's flyer constituted a "use" that is con
trary to subsection 22(1) of the Trade Marks Act.
The respondents also rely upon the provisions of
sections 19 and 20 of the Trade Marks Act as
affording an alternative base upon which to rest
the granting of the interim injunction. It is not
necessary to discuss this contention at any length.
In essence, the respondents say that the flyer
infringed the exclusive right of the registered
owner to the use of the trade mark "Naprosyn"
throughout Canada. I am unable to accept this
argument. It asserts that the flyer constituted a
deemed infringement because the appellant there
by advertised his "wares ... in association with a
confusing trade mark" in such manner as was
likely to have the effect of depreciating the value
of the goodwill attaching to that mark. I do not
agree that the presence of the trade mark "Napro-
syn" in the flyer amounted to the advertising of
"Apo-Naproxen" in association with a confusing
trade mark. To so hold would be to ignore the
reality of the situation. The flyer quite clearly used
the trade mark "Naprosyn" so as to identify the
respondents' product for the purpose of compari
son with the appellant's product in promoting sale
of the latter. In my view, the respondents, here
again, will face considerable difficulty in convinc
ing a trial judge of the soundness of its argument.
I turn next to consider the appropriate threshold
test to be applied in a case of this kind before an
interim injunction will issue. The learned Motion
Judge thought that the existence of a "serious
issue" to be tried was sufficient. That test was
developed in England' and has been applied by
courts in this country. 8 The appellant contends
that it is not the proper test and that the proper
one is the "prima facie" case test. 9 That test, of
course, is a higher one than the "serious issue"
test. No case has been brought to our attention in
which it has been authoritatively decided in
Canada as to which of these two tests is to be
applied in a case of this kind. Nevertheless, my
review of these cases leads me to accept as appro
priate the following view of the law expressed by
MacKinnon A.C.J.O. in Chitel et al. v. Rothbart
et al. 1 ° ( at page 522):
Although the American Cyanamid case has been followed in
this province, it has been properly emphasized by Cory J.,
speaking for the Divisional Court in Yule Inc. v. Atlantic Pizza
Delight Franchise (1968) Ltd. et al. (1977), 17 O.R. (2d) 505,
80 D.L.R. (3d) 725, 35 C.P.R. (2d) 273, that the remedy must
remain flexible and that the American Cyanamid test may not
be a suitable test in all situations. That there are exceptions to
or qualifications of the test is noted by Lord Diplock himself in
N.W.L. Ltd. v. Woods, [1979] 3 All E.R. 614 at 625:
My Lords, when properly understood, there is in my view
nothing in the decision of this House in American Cyanamid
Co. v. Ethicon Ltd. to suggest that in considering whether or
not to grant an interlocutory injunction the judge ought not
to give full weight to all the practical realities of the situation
to which the injunction will apply. American Cyanamid Co.
v. Ethicon Ltd., which enjoins the judge on an application for
an interlocutory injunction to direct his attention to the
balance of convenience as soon as he has satisfied himself
' American Cyanamid Co. v. Ethicon Ltd. (1975), A.C. 396
(H.L.).
See e.g. Yule Inc. v. Atlantic Pizza Delight Franchise
(1968) Ltd. et al. (1977), 17 O.R. (2d) 505 (H.C.); General
Mills Canada Ltd. v. Maple Leaf Mills Ltd. (1980), 52 C.P.R.
(2d) 218 (Ont. H.C.); Source Perrier (Société Anonyme) v.
Canada Dry Ltd. (1982), 64 C.P.R. (2d) 116 (Ont. H.C.).
9 See e.g. Tarra Communications Ltd. et al. v. Com-
municomp Data Ltd. et al. (1973), 1 O.R. (2d) 682 (H.C.);
Fellows & Son v. Fisher, [1976] Q.B. 122 (C.A.); N.W.L. Ltd.
v. Woods, [1979] I W.L.R. 1294 (H.L.); Fruit of the Loom,
Inc. v. Chateau Lingerie Mfg. Co. Ltd. (1982), 63 C.P.R. (2d)
51 (F.C.T.D.).
10 (1982), 39 O.R. (2d) 513 (C.A.).
that there is a serious question to be tried, was not dealing
with a case in which the grant or refusal of an injunction at
that stage would, in effect, dispose of the action finally in
favour of whichever party was successful in the application,
because there would be nothing left on which it was in the
unsuccessful party's interest to proceed to trial.
Is this a case of the kind referred to by Lord
Diplock as one "in which the grant or refusal of an
injunction at that stage would, in effect, dispose of
the action finally in favour of whichever party was
successful in the application, because there would
be nothing left on which it was in the unsuccessful
party's interest to proceed to trial"? Counsel for
the appellant contends that it is such a case. He
rests his contention on the basis that use of the
flyer during the period of its maximum impact,
that is, prior to listing of "Apo-Naproxen" in
provincial formularies during 1983 would have had
the effect of getting the new drug into the hands of
pharmacists and thus enable them to substitute it
for a drug prescribed. He said that once the listing
occurred, application of the provincial legislation
would be sufficient to bring about substitution. Be
that as it may, I think it is significant that the
respondents have not, since December 23, 1982,
taken any steps to bring this action on for trial,
having succeeded in securing the interim injunc
tion on that day. It appears to me that the effect of
the interim injunction has been "to dispose of the
action finally".
Although I am inclined to the view that the
prima facie case test is the proper one to be
applied," I have concluded that there is not here
either a "serious issue" or a "prima facie" case for
an injunction to be tried based upon the alleged
violation of the relied upon provisions of the Trade
Marks. Act. That being so, I find it unnecessary to
consider the respondents' argument also based
upon subsection 22(1) of that statute that the
trade mark "Naprosyn" was used "in a manner
likely to have the effect of depreciating the value
of the goodwill attaching" to it, or to take up the
question of irreparable harm. I do not see how the
" Hoffman-LaRoche Ltd. v. Apotex Inc., Supreme Court of
Ontario, White J., April 25, 1983 (unreported); Smith, Kline &
French Canada Ltd. v. Novopharm Ltd. (1983), 72 C.P.R. (2d)
197 (Ont. H.C.); Syntex Inc. v. Novopharm Ltd. et al. (1983),
74 C.P.R. (2d) 110 (Ont. H.C.).
interim injunction can stand.
For the above reasons, I would set aside the
judgment below with costs and would direct that
the interim injunction dated December 23, 1982,
be discharged.
URIE J.: I concur.
COWAN D.J.: I concur.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.