Novo Nordisk A/S v. British Telecommunications Plc, 2026 WL 01791875 (Ch. Div. June 23, 2026), is the first judicial decision from the United Kingdom that we have featured on the Blog. The high-tech solution that the court approved for combating proliferating fly-by-night websites that “in one way or another were involved in the sale of counterfeit and unlicensed” versions of the plaintiff’s “medicinal products” deserves consideration as a remedy in the United States for what is a world-wide problem. [Sorry, but this UK decision has no internal pagination.]
The “applicant” (plaintiff) had gotten tired of Whac-A-Mole with multiple websites with “mirror domain names.” It already had a “web blocking order” against four particular websites that it wanted to extend to seven new ones – all of which “were involved in the sale of counterfeit and unlicensed medicinal products to UK consumers.” That alone would not have been notable, or blogworthy.
This time the applicants sought “a further variation” – a so-called “dynamic blocking” order:
The idea behind this is that the Applicants should not need to keep returning to Court as further potential Target Websites are identified. Instead, they should be entitled to self-certify against a number of designated criteria, set out in a confidential schedule. If the relevant criteria are met, then the Applicants will be able to notify the ISPs that the infringing websites are also proscribed as Target Websites, and thus require the ISPs to take steps to block them. The ISPs – the direct Respondents to the proposed Order – have been consulted about the structure and do not oppose it, on the basis that their costs of compliance are met.
(Emphasis added).
The court recognized that illegal internet sales “is an area where creativity is needed in order to target wrongdoing effectively.” “Applicants have become aware of over 130 other websites that promote counterfeit and unlicensed . . . products to UK consumers.” Unfortunately, bad actors have the capability to create new fly-by-night websites faster than existing enforcement methods can shut them down.
The sale of unlicensed prescription-only medicinal products can result in serious harm. Much of the activity has been linked to organised crime gangs, operating anonymously from abroad, typically using intermediary routing services but targeting UK consumers. Their activities involve regulatory offences . . ., but in a manner which the relevant regulator . . . has in practice found very difficult to police.
The “legal framework” – “assimilated EU case law” (so much for Brexit) and various statutes − “makes it clear that the jurisdiction extends beyond the making of orders directed at bringing to an end existing infringements, and encompasses orders aimed at preventing future infringements.” The record went well beyond the private wrong of infringements of the applicants’ patents, but included extensive criminal and regulatory wrongdoing:
(1) selling unauthorised medicinal products without any marketing authorisation;
(2) selling prescription-only medicines otherwise than in accordance with a prescription;
(3) selling prescription-only medicines without being authorised to dispense them; and
(4) advertising such products for sale without proper authorisation.
Further, “there is a wide jurisdiction to make orders against third parties who have become involved in facilitating wrongdoing by others in order to prevent continuation of that wrongdoing.”
The “proposed structure” of the dynamic blocking order was:
- The Applicants themselves, as wronged victims, will be authorised to assess whether there are regulatory breaches involving criminal conduct.
- The Applicants themselves will be able to notify the third-party ISPs who will be required to take steps to prevent it happening.
- The Applicants will be able to self-certify whether the relevant blocking criteria are met by certifying that the targeted websites are infringing in violation of relevant regulations.
- The Applicants have the resources, skills, and incentive to be able to carry out the necessary Internet monitoring.
- The relevant governmental enforcement welcome and support the use of private initiative aimed at safeguarding the online environment and preventing the illegal sale of medicines.
- Safeguards, including a “sunset clause” and a requirement that operators of targeted websites be notified so that they can contest such orders, ensure that there is no real risk of “over blocking” and that potential interference with legitimate commercial activity is negligible.
The problem of illegal internet sales of many products, but particularly prescription drugs, is worldwide, not just confined to the United Kingdom. We offer this description of the UK’s novel public/private enforcement mechanism in the hope that legitimate suppliers of the American market might be able to convince the courts and regulators to allow analogous methods of stopping illegal drug trafficking in the United States.
Recent Comments