13 passing-off matter where similar legislation was considered. The question that arose in that case was whether the customers of pharmaceutical laboratories consisted only of physicians, dentists and pharmacists ‘or are the patients to whom the drugs are dispensed also included?’ The court there dealt with the provisions of the Prescription Drug Cost Regulation Act, 1986 dealing with an ‘interchangeable product’ which is ‘a drug or combination of drugs identified by a specific product name or manufacturer and designated as interchangeable with one or more of such products’. The Act gives both the pharmacist and the patient the choice to dispense or obtain the interchangeable drug, as the case may be, and requires of the dispenser to inform the patient accordingly (see s 4(2) and (3). The prescribing doctor may also indicate that no substitutions may be made (in which event the patient would have no choice (other than to refuse the prescribed drug) to select a substitute) (s 4(6)). The court (per Gonthier J) concluded:15 ‘The foundations of this right to choose and the reasons for patients’ choices do not have to be discussed at length here. Whether the choice is great or small, easily exercised or not, does not change anything in the case at bar. All that is significant, and beyond question, so far as the reasoning is concerned is that the patient has a choice. In my opinion, therefore, excluding patients from the customers covered by the passing-off action on the pretext that they have no choice as to the product brand is quite wrong. The physician’s opinion as to the brand of drug to be taken may of course influence the patient and most prescriptions do in fact indicate the product brand. That information may sometimes come from the patient. It should not be forgotten that in cases like the one before the Court, the medical treatment generally extends over a long period. Hypertension is often treated for several years, if not a lifetime. Patients taking a drug for some time can become accustomed to it and insist on a particular brand. Generally when a person is satisfied with a product, he tends to remain faithful to it. This is especially true in the health field where – understandably – patients are not very willing to experiment and perhaps still less so when they are suffering from conditions such as hypertension. There are thus grounds which I would characterize as psychological for insisting on a particular brand of drug. There are certainly also physiological reasons. It is entirely conceivable that excipients, the nonmedicinal part of the drug surrounding the active ingredient, may not have the same characteristics or not produce the same ingestive, digestive and other effects in the case of all manufacturers. The shape of the tablet may also play a part in the patient’s preferences: it 15 At 95 DLR (4th) 385 at 406b-h.