The lo­cal and re­gion­al dis­trib­u­tor of a range of spe­cial­ist skin­care prod­ucts has ob­tained an in­junc­tion block­ing Pen­ny­wise Cos­met­ics Lim­it­ed from sell­ing or mar­ket­ing the prod­ucts.

Last Fri­day, High Court Judge Joan Charles grant­ed the in­junc­tion against the lo­cal cos­met­ic re­tail­er to Dr Rachel Eck­el, the Skin Health In­sti­tute Lim­it­ed (SHI), and Bar­ba­dos-based Der­med­ica Med­ical Lim­it­ed.

The in­junc­tion stems from a law­suit over the im­por­ta­tion and sale of prod­ucts pro­duced by Cal­i­for­nia-based ZO Skin Health In­cor­po­rat­ed.

Ac­cord­ing to the court fil­ings, Eck­el claimed that she be­gan treat­ing her pa­tients at the in­sti­tute with the prod­ucts, in­vent­ed by renowned Unit­ed States (US) der­ma­tol­o­gist Dr Zein Oba­gi, in 2016.

Re­fer­ring to a sales and dis­tri­b­u­tion agree­ment from May 2019, un­der which Der­med­ica was giv­en the ex­clu­sive right to mar­ket and sell the prod­ucts re­gion­al­ly, Eck­el and the com­pa­nies point­ed out that “med­ical grade” prod­ucts are meant to on­ly be sold af­ter be­ing pre­scribed by a physi­cian.

Eck­el and SHI claimed that the prod­ucts were on­ly sold to their pa­tients af­ter a thor­ough con­sul­ta­tion process to en­sure pa­tient safe­ty.

She and the com­pa­nies filed a law­suit and sought an in­junc­tion af­ter they dis­cov­ered Pen­ny­wise was al­leged­ly sell­ing the prod­ucts over-the-counter at its 10 lo­ca­tions across Trinidad in Au­gust, last year.

They not­ed that the prod­ucts were not pur­chased from Der­med­ica or the US man­u­fac­tur­er.

They claimed that they sent rep­re­sen­ta­tives to dis­creet­ly in­quire about the prod­ucts and were re­port­ed­ly told that Pen­ny­wise had a li­cence to dis­trib­ute. They al­so claimed that Pen­ny­wise staff re­ferred to Eck­el and SHI while mar­ket­ing the prod­ucts.

They al­so claimed that they found signs af­fixed to the re­tail­er’s stores in­di­cat­ing that the prod­ucts were “ex­clu­sive” to it.

They al­so ques­tioned the au­then­tic­i­ty of the prod­ucts based on dif­fer­ences in pack­ag­ing, and in­con­sis­ten­cies in tex­ture and colour.

In the law­suit, Eck­el and the com­pa­nies are claim­ing that Pen­ny­wise’s con­duct breached the pro­vi­sions of the Pro­tec­tion Against Un­fair Com­pe­ti­tion Act and caused dam­age to the brand’s rep­u­ta­tion.

“It was al­so con­tend­ed that the ev­i­dence of the Claimants that there was a drop in sales of the prod­ucts since Pen­ny­wise be­gan re­tail­ing them is ev­i­dence of dam­age caused as a re­sult of the de­cep­tive prac­tices out­lined above,” Jus­tice Charles said.

While Jus­tice Charles was con­sid­er­ing the in­junc­tion ap­pli­ca­tion, Pen­ny­wise agreed to re­move the prod­ucts from its shelves pend­ing the de­ci­sion.

How­ev­er, in de­fence of the law­suit, Pen­ny­wise de­nied any wrong­do­ing.

It claimed that the ex­clu­siv­i­ty con­tract with the man­u­fac­tur­er re­ferred to by Eck­el and the com­pa­nies was un­en­force­able against it.

Pen­ny­wise point­ed out that the prod­ucts could be pur­chased from in­ter­na­tion­al re­tail­ers and are reg­u­lar­ly sold with­out any ac­com­pa­ny­ing need for med­ical su­per­vi­sion.

It ac­cused Eck­el and the com­pa­nies of en­gag­ing in an­ti-com­pet­i­tive prac­tices by seek­ing to en­force a mo­nop­oly over the prod­ucts.

In de­cid­ing whether to grant the in­junc­tion, Jus­tice Charles not­ed that the pur­port­ed state­ments by the re­tail­er’s em­ploy­ees showed that Eck­el and the com­pa­ny had an ar­guable case that should go to tri­al.

“The state­ments of the De­fen­dant’s em­ploy­ees in my view, tend­ed to lead cus­tomers to be­lieve that there was a con­nec­tion be­tween the De­fen­dant’s sale of ZO prod­ucts and the work of Dr Eck­el and SHI- specif­i­cal­ly, the brand name ZO and the sys­tem un­der which the prod­ucts were dis­pensed by SHI and Dr Eck­el,” she said.

She al­so took is­sue with signs in the re­tail­er’s stores as she not­ed that it was ev­i­dence of an in­ten­tion to de­ceive the pub­lic.

“The ad­ver­tise­ments, sig­nage, and state­ments com­bined to cre­ate a false im­pres­sion to the pub­lic and were like­ly to de­ceive cus­tomers in­to be­liev­ing that Pen­ny­wise had col­lab­o­rat­ed with the Claimants in pro­vid­ing the prod­ucts for sale, and that it was the sole dis­trib­u­tor of such prod­ucts,” she said.

Con­sid­er­ing the risk of in­jus­tice if the in­junc­tion was not grant­ed, Jus­tice Charles not­ed that the claimants ex­clu­sive­ly deal with the prod­ucts while Pen­ny­wise has a large store chain.

“They clear­ly stand to lose more on the is­sue of loss of sales if a large dis­trib­u­tor such as Pen­ny­wise is al­lowed to con­tin­ue sales un­til tri­al,” she said.

Un­der the terms of the in­junc­tion, Pen­ny­wise was barred from sell­ing or mar­ket­ing the prod­ucts. It was al­so or­dered to re­move the prod­ucts from its shelves and to re­move the ad­ver­tis­ing in­clud­ing on so­cial me­dia.

The in­junc­tion will stay in place un­til the sub­stan­tive law­suit is de­ter­mined by Jus­tice Charles.

Eck­el and the two com­pa­nies were rep­re­sent­ed by Ter­rence Bharath, SC, Shiv Shar­ma, and Daniel­la Bharath. Pen­ny­wise was rep­re­sent­ed by Lar­ry Lal­la, SC, Vivek Lakhan-Joseph, and Taruna Man­groo.