In a reversal of fortune, the Eastern District of Tennessee denied motions for preliminary injunction that King Pharmaceuticals, Inc., and other drug manufacturers brought against Seattle-based ZymoGenetics, Inc.
The order was a departure from the way the case began. On Nov. 2, plaintiffs obtained ex-parte temporary restraining orders prohibiting ZymoGenetics from using King’s THROMBIN-JMI trademark as a Google Adword; stating that ZymoGenetics’ RECOTHROM® product is superior to and/or safer than King’s THROMBIN-JMI® product; and stating that one or more lawsuits have been filed against King and/or THROMBIN-JMI® product customers for harm caused to patients who were exposed to King’s THROMBIN-JMI® topical thrombin line of products. (See STL’s Nov. 4 post on the TROs here.)
Four days later, the court granted ZymoGenetics’ motion to dissolve the TROs.
On December 10, it denied plaintiffs’ motions for preliminary injunction. The court found that monetary damages could compensate plaintiffs, and plaintiffs’ one-year delay in filing suit militated against the need for injunctive relief on a preliminary basis.
With regard to plaintiffs’ specific requests for relief, the court concluded:
- “Regarding the Adword, ZymoGenetics stated that it has ceased using King’s trademark and that it would not do so in the future. Thus, King cannot establish irreparable injury without the injunction, the second factor in the analysis. This weighs heavily in ZymoGenetics’ favor.”
- “Regarding the lawsuit prevarications, ZymoGenetics claims that non were made or will be made. It states that it has taken affirmative steps with its sales representatives to make sure none will be made. This Court cannot find that King is likely to succeed on the merits, for this issue is hotly contested.”
- As for the comparative promotional superiority and safety claims, “This is sue is hotly contested. Both parties filed many declarations and documents and presented testimony at the November 16, 2009 hearing. From this vast volume of evidence on both sides, which this Court has read and considered, this Court cannot find that King is likely to succeed on the merits. The issue is very scientific and technical, and there is a wealth of evidence on both sides. This factor weighs against King.”
The case cite is King Pharmaceuticals, Inc. v. ZymoGenetics, Inc., No. 09-244 (E.D. Tenn.).