Geneva Labs’ counterfeit Bio-Oil case dismissed as ‘madness’
Intellectual Property June 21, 2018 10:08 pm By Miklos Bolza | Sydney

A Federal Court judge has dismissed proceedings by US pharma giant Geneva Laboratories against disgraced Sydney pharmacist Mina Attia over sales of 1,000 counterfeit Bio-Oil skincare bottles, calling it “madness” and a misuse of the court.

Justice Steven Rares, in an interlocutory hearing Thursday, said Geneva had failed to prove Attia, as the sole director of healthcare product distributor Hillmear, had knowingly purchased and sold fake Bio-Oil products.

The judge slammed the company for its refusal to resolve the matter, worth just under $7,300 in compensatory damages,¬†despite multiple settlement attempts by Attia’s lawyers.

“This is just madness,” Judge Rares said. “I’m not going to let the court be misused in this way. This is sledgehammers to crack walnuts.”

Wisconsin-based Geneva, which owns the Bio-Oil trade mark, and Union-Swiss, which holds the exclusive right to use the marks in Australia and other countries, originally named nine companies and their directors in their trade mark and copyright infringement suit, filed June 2017. The case was expanded to include 13 respondents, including Attia and Hillmear.

Barrister for Geneva, Adam Casselden, SC, attacked Attia’s credibility at the hearing, pointing to the December 2016 deregistration of Attia’s pharmacist licence by the NSW Civil and Administrative Tribunal, which found him guilty of “unsatisfactory professional conduct” after Viagra he sold to the Sydney Children’s Hospital turned out to be fake.

Attia’s lawyer, Michael Flaherty, said the Tribunal’s findings had “little to no weight or relevance” in this case given the “isolated” nature of the particular Bio-Oil purchase. In an affidavit, Attia said the contested products — 960 200mL bottles of Bio-Oil — were purchased only once through U-Care, also a respondent, with Hillmear typically going through larger distributors such as API, Symbion, and Sigma Healthcare.

“This purchase was completely innocent in terms of [Attia’s] involvement,” he told the court.

In siding with Flaherty, Judge Rares said Geneva had failed to present a strong argument that it had any case against Attia and criticised the company for failing to produce any real evidence despite having access to 4,000 items, obtained through search orders, from the pharmacist’s phone and computer.

In a related judgment in April, Judge Rares dismissed a bid by Geneva to include Nayere Naghipoor, director of U-Care, as the 14th respondent in the proceedings.

Last year, Geneva secured a $540,000 Federal Court judgment in a separate case against Prestige Premium Deals over counterfeit Bio-Oil.

In that case, the court ruled that the counterfeiting was a “serious, planned and protracted attack” on Geneva’s intellectual property rights, and that every counterfeit sale could be counted as loss of a genuine sale of the product.

Proceedings in the current case are continuing against Hillmear.

Geneva was represented by Marque Lawyers; Attia was represented by Michael Flaherty Solicitor.

The case is Geneva Laboratories Limited & Anor v Pharmacy Depot Hurstville Pty Ltd (ACN 163 892 939) & Ors.

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Miklos Bolza

Miklos Bolza has been a journalist for three years. He has written for a variety of publications, including NZ Lawyer, HRD Australia, and Australian Broker. He is currently the Sydney court reporter for Lawyerly.