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Litigation

Epic copyright battle swings Merck KGaA’s way

Court rules that Merck & Co. infringed Merck KGaA’s copyright for the name Merck in the UK

by Alex Scott
May 30, 2020 | APPEARED IN VOLUME 98, ISSUE 21

 

A decades-long back-and-forth battle for brand ownership between the German drugmaker Merck KGaA and Merck & Co. of the US has just swung the German firm’s way.

The UK’s High Court of Justice has ruled that Merck & Co. repeatedly infringed Merck KGaA’s use of the Merck name in the UK, causing a “disturbance” to Merck KGaA’s copyright and confusion about ownership of the name. Merck KGaA cited 16 cases of copyright infringement during the case. The ruling upholds a 2016 judgment that Merck & Co. had contravened copyright law in the UK. In the latest ruling, the judge determined that the infringements were willful rather than dishonest.

Before World War I, Merck & Co. was the US branch of Merck KGaA. But the US seized Merck & Co. in post-war reparations. An agreement reached in 1955—which remains in place—holds that only Merck & Co. can use the Merck name in the US and Canada, and only Merck KGaA can use it in the rest of the world.

But the 1955 agreement did not anticipate the internet. The infringements cited in the latest UK ruling relate to Merck & Co.’s branding of websites in part targeted at the UK, the promotion of merck.com in the UK, and the use of @merck.com email addresses for employees outside permitted territories.

Despite the ruling, Merck & Co. shows no signs of throwing in the towel. The US firm is 4 years into a lawsuit filed in New Jersey in which it alleges its trademark has been infringed by none other than Merck KGaA.

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