Syner-Med Pharmarceuticlas Ltd v Glaxo Group Limited [2010] KECA 132 (KLR)
The bottom line
#Kenya's Court of Appeal let Syner-Med keep selling its drug while it appeals a ruling that its name too closely resembles Glaxo's.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the intended appeal is arguable
- 2.Whether, unless the stay of execution is granted, the success of the intended appeal would be rendered nugatory
Key legal issues
#Whether the intended appeal was arguable
The appeal was arguable: the Judge appeared to take judicial notice of debatable facts unsupported by evidence, and did not weigh that the drugs in issue are available only on prescription, reducing likelihood of public confusion.
The Court identified two arguable points: first, that the Judge may have taken judicial notice of facts without supporting evidence having been led; second, that the Judge failed to attach weight to the fact that the drugs can only be obtained on prescription by a medical doctor, so the public at large may not be confused by the similar names. The Court reiterated that even one arguable point is sufficient under Rule 5(2)(b) and that arguability does not connote ultimate success.
Whether the appeal would be rendered nugatory absent a stay
Yes: the applicant's product was already in the market and, absent a stay, it might be forced to withdraw, rename and repackage it; the balance of convenience favoured maintaining the status quo.
The Court noted the applicant's product was already in the market and that without a stay the applicant might have to withdraw it or change its name and repackage. Applying the balance of convenience and the claims of both sides, the Court ordered the status quo maintained: registration to remain in abeyance while the applicant continues marketing its product pending the appeal.
Legal principles established
#- An applicant under Rule 5(2)(b) must satisfy the Court both that the intended appeal is arguable and that, if successful, it would be rendered nugatory unless a stay is granted.
- An arguable point need not be one that must succeed; even one arguable point suffices under Rule 5(2)(b).
- In considering whether an appeal will be rendered nugatory, the Court may take into account the balance of convenience or the claims of both sides.
Court orders
#- 1.Stay of the judgment of the High Court dated 4th February 2010 on terms that the applicant's application for registration of its trade mark is held in abeyance pending the hearing and determination of the intended appeal
- 2.The applicant is entitled to continue marketing its product until the outcome of the appeal is known
- 3.Costs of the motion to be in the intended appeal
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya at Nairobi, Milimani Commercial Courts
- H.C. Miscellaneous Application No. 792 of 2009
- Jurisdiction invoked
- Rule 5(2)(b) of the Court of Appeal Rules
Relief refused
#Unconditional stay leaving registration process entirely frozen
The Court granted the stay only on terms preserving the status quo, holding the registration application in abeyance rather than staying all effect of the judgment
Costs
The costs of the motion shall be in the intended appeal.
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
even one arguable point is sufficient for the purposes of Rule 5 (2) (b)
an arguable point does not in any way connote a point that will or must succeed if and when it is fully ventilated
the applicant shall be entitled to continue marketing its product until the outcome of the appeal is known. That is the order which commends itself to us and we shall grant an order of stay on those terms
The costs of the motion shall be in the intended appeal.
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- M N M v D N M K & 13 others [2017] KECA 172 (KLR)[2017] KECA 172 (KLR)24 Nov 2017
Cite this brief
#Cite this brief
Caselaw, "Syner-Med Pharmarceuticlas Ltd v Glaxo Group Limited [2010] KECA 132 (KLR)", Case Analysis (2010). Civil Application No. 77 of 2010. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2010/132/eng@2010-06-11
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.