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Trade Dress Protection: Eye Candy |
July 10, 2009
Previously published by Medical Marketing and Media on April 2009
The sweeping competition injected into the industry by generic-drug manufacturers has increased the need for brand-name drugmakers to boost consumer recognition of, and desire for, their branded products. To combat market erosion, many drugmakers have turned to DTC advertising to encourage patients to recognize and request a particular drug by name. To augment this effort, pharmaceutical companies have also focused on the design of the drugs themselves, adding unique source-identifying features such as color, shape, size, taste, or aroma to differentiate their products in the marketplace. AstraZeneca is an example of a company that has enjoyed billions of dollars in sales of its Prilosec product, due in part to its marketing savvy - educating the consuming public to recognize Prilosec as "the purple pill." But recent case law calls into question the scope of trademark protection available to these organoleptic properties in pharmaceutical product design.
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The views expressed in this document are solely the views of the author and not Martindale-Hubbell. This document is intended for informational purposes only and is not legal advice or a substitute for consultation with a licensed legal professional in a particular case or circumstance. |
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