Merck v Merck: the saga continues as UK Court of Appeal confirms breach of coexistence order

The Court of Appeal has recently delivered a ruling in the protracted legal battle between the two Merck pharmaceutical entities—Merck KGaA and Merck Sharp & Dohme LLC, along with Merck & Co Inc. The appeal focused on the application of the "Merck" trademark in the UK and whether specific online activities contravened a 2020 order that enforced a prior High Court decision. Lord Justice Arnold, supported by Lord Justice Phillips and Lady Justice Andrews, rejected all four grounds of appeal. This ruling offers significant insights into the function of declaratory relief in trademark enforcement, the definition of "targeting" in the digital realm, and the interpretation of exemptions within coexistence agreements. It underscores the complexities of sustaining long-term coexistence arrangements in an increasingly digital landscape. The case originates from the unique historical context of two prominent pharmaceutical companies sharing the same name globally. Merck Global, based in Germany, has roots dating back to 1668, while Merck US emerged as a subsidiary in 1889 and later became independent. A coexistence agreement established in 1970 delineates the rights of both entities regarding the "Merck" name, with Merck Global retaining rights outside the US, Canada, Cuba, and the Philippines. The advent of digital technology has complicated this division, prompting Merck Global to initiate legal action in the UK since 2013 for breach of contract and trademark infringement. The recent proceedings examined whether Merck US's online activities violated the 2020 court order, with the Court of Appeal affirming that declaratory relief was an appropriate method for clarifying alleged breaches without escalating disputes unnecessarily. The judgment also clarified the criteria for what constitutes "targeting" in the UK, emphasizing that disclaimers alone do not suffice to negate liability. Overall, the case highlights the need for businesses to continually adapt their coexistence strategies to align with evolving digital realities.



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