Glaxo Group Limited v. Apotex

Drug: ADVAIR® DISKUS®

This was an appeal of a decision of a Judge expunging a trade-mark from the Register of Trade-marks. The decision can be found here, and our summary of this decision can be found here.

The Court of Appeal noted that GSK appealed the decision on the basis that the Judge erred in three ways: in failing to apply the proper burden of proof, in using the wrong test for distinctiveness, and by improperly applying the test for distinctiveness to the facts. The Court of Appeal rejected all three grounds of appeal. Specifically, the Court of Appeal found that the Judge properly considered the strength of GSK’s evidence while comparing GSK’s evidence and the respondents’ evidence, and that GSK did not demonstrate that the Judge made a palpable and overriding error in reviewing the evidence. With respect to the test for distinctiveness, the Court of Appeal found that the Judge did not devise nor apply a new test for distinctiveness.