permission.
Mr Levy gave evidence during the afternoon of 15 August 2000. He was crossexamined for a short while during
the afternoon and counsel on behalf of respondents then requested his further crossexamination to stand over
until the next morning so that further instructions on his evidence could be obtained. It subsequently appeared
during crossexamination the following morning that Levy's assistant pharmacist was telephonically approached by
Mr Lance Shortt (who has deposed to an affidavit on behalf of respondents but did not give evidence) on the
evening of 15 August to fill a prescription for Augmentin. The assistant
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was asked by Shortt whether there was a generic equivalent and was informed that there was. As is apparent from
exhibits 13A, B and C Augmaxcil was then substituted and it was suggested that this was in breach of Ethical Rule 2
governing the conduct of pharmacists by not telephoning the doctor concerned to obtain his consent to the
substitution. Levy, however, testified that he had a relationship with the doctor concerned pursuant to which the
doctor gave a blanket consent to such substitution of generic equivalents. Levy produced in evidence exhibit 14, a
faxed copy of the prescription, with the notation that the substitution had taken place at the instance of the
patient. In my view Levy's credibility was unaffected by respondents' attempts to discredit him. Mr Shortt's conduct
on the other hand seems to me to be deplorable in that he clearly attempted to mislead Levy. During the further
crossexamination the following morning it was never put to Levy that his criticism of the respondents' pharmacists
was unwarranted or incorrect. As I have previously indicated his crossexamination stood over until the next
morning so that instructions could be taken on his evidence. When the hearing resumed his evidenceinchief and
thus the criticisms of the affidavits filed on behalf of respondents was unchallenged. In default of such a challenge
and without an alternative version even being put to him the attempts to discredit him were in my view misplaced,
unwarranted and unsuccessful.
Respondents also relied on the affidavit evidence of Jones to the effect that if one combines the name Augmaxcil
with the socalled "Augmentin shape" all kinds of administrative problems will arise. These problems were, however,
not explained and Levy testified that he was unable to say what any such problems could conceivably be. Also this
evidence of Levy was not challenged.
Jones also stated in his affidavit that when AUGM is typed in preparatory to filling a prescription and Augmaxcil
appears on the computer screen this can facilitate the wrong brand being prescribed deliberately and can also lead
to errors. Levy, however, testified that normally both products would appear on the screen and there would be no
confusion.
The applicant's answer to respondents' allegations, which was confirmed by Levy and whose evidence was
unchallenged, was to the following affect: Computer programs are used not as an aid in identifying a particular
pharmaceutical product but to ascertain particular information concerning a product which has been prescribed. The
operator of the computer will key in the letters of the name of the pharmaceutical and as the letter A is keyed in all
pharmaceuticals with that letter will be displayed. As each letter is keyed in the list is narrowed so that by the time
the word Augmentin is typed in it will be the only product displayed on the screen. There is no reason for deception
or confusion. The pharmacist knows the product he is looking for and keys in the information accordingly. This is true
for the countless pharmaceuticals starting with the same
Page 149 of [2001] 2 All SA 126 (T)
letters. The socalled common prefix is simply the abbreviation for augmented. The applicant's mark consists of the
descriptive prefix aug meaning augmented and its registered and wellknown mark Maxcil. It is not disputed that
the applicant chose
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Augmaxcil to signify that the product is an augmented Maxcil which, it is not disputed, is a wellknown trade mark.
As will be seen from a sample of Augmaxcil containers, exhibits 11A and 11B, the whole visual emphasis is on the
Maxcil element of the mark with the mere addition of the prefix Aug. When the whole Augmentin mark is compared
with the whole Augmaxcil mark and taking into consideration the care taken by pharmacists in dispensing
medicines, no deception or confusion will occur. Similarly even in busy hospitals the nursing staff who administer
pharmaceuticals take care to ensure that medicines are correctly administered and they will not confuse Augmentin
and Augmaxcil. In view of the fact that Levy's evidence, which confirmed the applicant's answers to respondents'
allegations in this regard, was not challenged it should, in my view be accepted. In coming to this conclusion I keep
in mind that none of the pharmacists gave evidence in support of the counterapplication while the evidence of
applicant on affidavit was confirmed by the uncontroverted oral evidence of Levy and Van Oudtshoorn. It was never
even suggested to Levy in the course of his crossexamination that his criticism of the respondents' pharmacists'
evidence was not justified.
In my view Mr Faber's replying affidavit to applicant's answering evidence is unhelpful and, in view of the fact
that no oral evidence was given, even if regard would be had to it, it really takes the matter no further.
In my view it is of particular relevance in this case that the goods fall under the category of ethical
pharmaceutical products, ie products obtained on prescription only. Ultimately it is not the patient who decides what
to purchase. The pharmaceutical is prescribed for him by a medical practitioner and dispensed by a pharmacist, or in
a hospital, dispensed by a pharmacist and administered by a nurse on the ward. It seems to me the remarks of Van
Reenen J in AdcockIngram Laboratories Ltd v SA Druggists Ltd and another 1983 (2) SA 350 (T) at 362F363F are