Prozac Litigation

The plaintiffs, Eli Lilly and Company and Eli Lilly Canada Inc. (“Eli Lilly”), makers of the largest selling anti-depressant medication, Prozac brand fluoxetine hydrochloride, brought a size, shape, and colour passing-off suit against the defendants, Apotex Inc. et al. (“Apotex”), makers of generic fluoxetine hydrochloride. Eli Lilly alleged that its Prozac brand name product, available only in a green and cream gelatin capsule, was distinctive and that the sale by Apotex of generic fluoxetine hydrochloride in capsules of similar size, shape, and colour would be confusing to the public. After a three month trial the Court concluded that Eli Lilly’s green and cream capsule did not indicate a particular source of manufacture, but rather, meant a capsule of a particular medicine. Consequently, Apotex can continue selling its generic fluoxetine hydrochloride capsules in look-alike appearance, pending the outcome of Eli Lilly’s appeal to the Federal Court (Appeal Division) which is anticipated to be heard this Spring. Lead counsel to Eli Lilly is Patrick Smith of Gowling, Strathy & Henderson (Toronto). Lead counsel to Apotex is Harry Radomski of Goodman Phillips & Vineberg (Toronto).