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Pharmacy - Internet Library of Law and Court Decisions - Updated May 4, 2006

Affirming the decisions of the North Dakota State Board of Medical Examiners ("Board") and an Administrative Law Judge ("ALJ"), the North Dakota Supreme Court holds that plaintiff Miles Jones, a doctor licensed in North Dakota, violated N.D.C.C. §43-17-31(6) and (21) by issuing prescriptions, primarily for Viagra, to patients based, in many cases, solely on a lengthy questionnaire the prospective patient completed.  In reaching this result, the Court relied on estimates of both the Board and ALJ that Dr. Jones issued approximately 72 prescriptions per hour, from which they concluded "it is obvious that not much thought and attention can be given to each patient if one is reviewing 72 questionnaires per hour especially reviewing the lengthy questionnaires" at issue.  N.D.C.C. §43-17-31 permits a doctor licensed in North Dakota to be disciplined for (6) "the performance of any dishonorable, unethical or unprofessional conduct likely to deceive, defraud or  harm the public" or (21) for "a continued pattern of inappropriate care as a physician …".

The Court did reverse so much of the decision of the Board which elected to revoke Dr. Jones' license to practice medicine in North Dakota as punishment for this misconduct, because the Board failed to detail its rationale for imposing that sanction in lieu of the lesser penalties recommended by the ALJ.  The matter was remanded to the Board for further consideration concerning the proper penalty and/or a delineation of the rationale for its decision.

In six related lawsuits arising out of the sale by online Canadian-based pharmacies of both branded and generic versions of plaintiff's popular anticholesterol medication "Zocor," the Court granted motions to dismiss trademark infringement claims challenging defendants' purchase of the keyword "Zocor" from search engines to trigger the display of "sponsored links" to defendants' websites.  Such purchases do not constitute the requisite 'use in commerce' of plaintiff's mark necessary to sustain such claims.  The Court also granted defendant CrossBorder's motion to dismiss trademark infringement claims arising out of its use of plaintiff's trademark "Zocor" on its website, at which CrossBorder sold both plaintiff's own product, as well as a generic version described as "generic simvastatin."  "Simvastatin" is the active ingredient in "Zocor."  Because it sold branded Zocor at its website, this was a permitted fair use of plaintiff's mark.

The Court declined at this early stage of the proceedings to dismiss the trademark infringement and dilution claims advanced against the remaining defendants.  Defendants link the "Zocor" mark to web pages at which they sold both branded Zocor and generic products described alternatively as "generic Zocor," "Zocor generic" or "Zocor-generic."  The Court was unwilling on this motion to determine whether such uses were likely to confuse consumers as to the source and sponsorship of these generic products, and hence unwilling to declare them permitted fair uses of plaintiff's trademarks.

Finally, the Court granted the motion to dismiss for want of personal jurisdiction of defendant CanadaDrug's CEO.  This individual, a Canadian resident, was neither alleged to have personally undertaken any actions in the United States in furtherance of the infringing activities at issue, nor been a "primary actor" therein.

In this action, the court, on consent of all parties, issued a permanent injunction enjoining the Texas-based operators of an Internet pharmacy from shipping prescription drugs to Missouri residents where the pharmacy was not licensed by the appropriate Missouri authorities, and where medications were shipped pursuant to prescriptions issued to patients over the Internet by a doctor not licensed by Missouri solely on the basis of an online consultation form the patient completed without the benefit of any physical examination.