document "Good Wholesalers Practice for Wholesalers, Distributors and Bonded Warehouses" dated 6 June
2003 requiring key personnel to have the education, training and experience to discharge their duties, inter
alia, the "handling and storage of medicine . to prevent confusion of products". These control measures, no
doubt, lessen the likelihood of confusion or deception.
[23] The conditions regulating the sale and prescription of prescribed medicines significantly reduce the likelihood
of confusion between marks associated with these pharmaceuticals.10 Two approaches seem possible. These
emerge from the following passage in a European case:
"In some Member States the view is taken that a likelihood of confusion should be accepted more readily in the case
of medicines on account of the serious consequences that can ensue if the patient takes the wrong product. In other
countries the view is taken that pharmaceutical trade marks will not be confused so easily because the consumer has
the assistance of qualified professionals and is particularly attentive to differences between marks for pharmaceutical
products because of the importance of taking the right drug."11
The court below followed the second approach. However, in Organon Laboratories Ltd v Roche Products (Pty)
Ltd12 Botha J said:
View Parallel Citation
"It seems to me, however, that in the cases quoted the Courts were mainly concerned with drawing a distinction
between products freely available to the public and products which could only be dispensed on a doctor's prescription.
In the latter case, the possibility of errors is substantially lessened by the various safeguarding circumstances, such
as the fact that the product can be sold only on the written authorisation of a doctor, and the fact that the nature of
the product requires the exercise of particular care on the part of both the doctor and the dispensing pharmacist. (But
even in this type of case, assuming that a differentiation will be made between the various products as such, it occurs
to me that the possibility of confusion as to the origin of similar products having common features in their marks
might yet require scrutiny)."
[24] The remark in AdcockIngram Laboratories Ltd v Lennon Ltd, referred to above, that it is the "doctor's
responsibility as to what the patient should have, and his alone", has a sense of unreality in modern
circumstances, where patients play, and are expected to play, an active role in relation to their own health. It
reduces the patient to a passive bystander in the process of providing him or her with treatment and
medication. Such an approach is hardly reconcilable with section 8 of the National Health Act 61 of 2003 which
gives the patient the right to participate "in any decision affecting his or her personal health and treatment".
Patients often discuss
Page 10 of [2012] 3 All SA 1 (SCA)
their medication among themselves and with their doctors. They exchange information on which product they
find most efficacious. This information may then be discussed with their doctors or pharmacists when the issue
of substituting a medicine for a generic or the more expensive innovator product is raised. Often they provide
the names of their medicines, particularly chronic medication, to the medical practitioners treating them. They
discuss the advantages and disadvantages with them. They consider different options. In a case of
emergency a Schedule 3 medicine may be sold, for use during a period not exceeding 30 days in accordance
with the original prescription, if the pharmacist is "satisfied that an authorised prescriber initiated the
therapy"13 clearly on information provided by the patient. Whatever the position may have been in 1983,
the patient is no longer a passive bystander when treated and receiving prescribed medication.
[25] The provisions of section 22F of the Medicines and Related Substances Act widen the scope of the enquiry to
be made. Section 22F deals with generic substitution or interchangeable multisource medicines, and, it was
submitted, envisages a situation where the patient forms part of the decisionmaking process thereby
increasing the likelihood of deception or confusion. It provides as follows:
"Generic substitution.
(1)
Subject to subsections (2), (3) and (4), a pharmacist or a person licensed in terms of section 22C(1)(a) shall
(a)
inform all members of the public who visit the pharmacy or any other place where dispensing takes
place, as the case may be, with a prescription for dispensing, of the benefits of the substitution for
View Parallel Citation
a branded medicine by an interchangeable multisource medicine, and shall, in the case of a substitution,
take reasonable steps to inform the person who prescribed the medicine of such substitution;
(b)
dispense an interchangeable multisource medicine instead of the medicine prescribed by a medical
practitioner, dentist, practitioner, nurse or other person registered under the Health Professions Act,
1974, unless expressly forbidden by the patient to do so.
(2)
If a pharmacist is forbidden as contemplated in subsection (1)(b), that fact shall be noted by the pharmacist on
the prescription.
(3)
When an interchangeable multisource medicine is dispensed by a pharmacist he or she shall note the brand
name or where no such brand name exists, the name of the manufacturer of that interchangeable multisource
medicine in the prescription book.
(4)
A pharmacist shall not sell an interchangeable multisource medicine
(a)
if the person prescribing the medicine has written in his or her own hand on the prescription the words
'no substitution' next to the item prescribed;