Handing down her judgment this morning (December 14) – which C+D attended – Master Julia Clark said Pharmacy2U had “fallen far short of showing” that the court should order the National Pharmacy Association (NPA) to hand over names, addresses and contact details of its members.
Pharmacy2U alleged that a NPA leaflet and poster (see below) distributed to members from November 2017 onwards had damaged the company’s reputation.
After the NPA refused to hand over these personal details, Pharmacy2U sought permission from the High Court to directly contact the 3,202 pharmacies who had been sent the materials.
Pharmacy2U intended to write to each member informing them that the materials "constitute trademark infringement", asking them not to publish the material further, and destroy all copies in their possession, the court explained.
Assessing the extent of the “damage”
While the online pharmacy business accepted that the statements used in the NPA materials were true, it claimed the leaflet’s “primary purpose is to disparage the services offered by Pharmacy2U by making reference to historic difficulties that the company experienced and using these to unfairly promote the services of the NPA’s members above those of Pharmacy2U”, according to the court documents.
“In short, the [leaflet] is nothing more than an attempt to rubbish the value of Pharmacy2U’s brand and divert business away from Pharmacy2U to NPA members,” the company said.
Pharmacy2U claimed it needed the names and contact details of thousands of pharmacies “to enable [it] to understand the extent of the damage that it had been exposed to” and “enable it to contact those individuals, with a view to trying to address the ongoing harm being caused to Pharmacy2U”.
In her judgment, Master Clark said the contact details of the NPA members are “not necessary for the purpose of Pharmacy2U understanding the extent of the damage to which it has been exposed”, and ruled the company’s request was not “necessary or desirable”.
Accusing pharmacies of wrongdoing
“Pharmacy2U is not seeking to write to [NPA] members simply to set the record straight,” Master Clark added.
In writing to each member, Pharmacy2U was planning to allege that pharmacies which had displayed the materials were “a wrongdoer, against whom a claim could be brought”, she said.
“To bring a claim against each [NPA member] for each (minor) act of infringement would, in my judgment, be disproportionate,” she added.
NPA members “were not responsible for the wording of the [marketing materials] and have no direct knowledge of its truth or falsity”, she stressed.
“There is a serious risk, therefore, that Pharmacy2U will be able to ‘pick off’ the individual members,” she added, rather than target the NPA as an organisation.
NPA: “Unreasonable” attempt to intimidate pharmacists
Commenting on the judgment, the NPA said: “The court has seen this for what it is, a completely unjustified and unreasonable attempt to obtain details of our members in order to intimidate them.
“Online pharmacies have a place within the health sector and we have a significant number within our membership, but all pharmacies must behave appropriately irrespective of their business model,” it added.
C+D has contacted Pharmacy2U for comment.
See the NPA leaflet and poster in full.