Tags |
|
|
Links |
|
|
Advice Pool - Everything You Need to Know About Trademarks and Fair Use
Trademarks are one of those things in life that nearly no one understands, but that just about everyone is unwilling to admit. So I'll make it easy: Trademarks simply designate a product's source of origi
According to USFDA, a combination product is one composed of any combination of a drug and device; biological product and device; drug and biological product
n. If I say "Diet Coke" you probably think of a silver and red aluminum can, or a tall glass of ice filled with dark bubbling beverage. You can probably taste it, too. In any case, the trademark
; or drug, device, and biological product and fixed dose combination would include two or more combinations of drug.
Examples of combination products may in
Examples of combination products may in
has successfully designated what it is and, and "it" is a particular low-calorie drink from the Coca-Cola Company folks.
As a trademark attorney, I have had the pleasure of protecting the good
As a trademark attorney, I have had the pleasure of protecting the good
lude drug-coated devices, drugs packaged with delivery devices in medical kits, and drugs and devices packaged separately but intended to be used together.
will and reputation my clients have worked so hard to create for their enterprises on dozens of occasions. No ifs, ands or buts, trademarks are a devastatingly effective commercial tool. Whether it's a lo
here is enormous increase in the number of combination products entering the market in the recent years. Combination products have proven advantages but fixe
cal specialty hardware store or a global internet search engine, eventually, just about every business has trademark issues. And I know, because I represent them all. But one of the biggest misconceptions
d dose combinations are still in the process of convincing regulatory authority on their advantages over the single ingredient formulations.
Combination pro
Combination pro
I find among my clients -- and lay people in general -- is that trademarks are somehow absolute. That is, that once someone puts the letters "TM" or ® next to a trade name, that that
ucts have become life saving products for the pharmaceutical companies who doesn’t have many innovative molecules in their product pipeline and have been inc
name is somehow off-limits to all uses whatsoever--that's just not the case.
Think about it, Coca-Cola is often considered to be the world's most recognized and valuable trademark. In fact, it is so wel
Think about it, Coca-Cola is often considered to be the world's most recognized and valuable trademark. In fact, it is so wel
easingly used in the product life cycle management. Even the companies having product patents are trying to extend their product life cycle through the combi
l established that many folks simply overlook that it is actually a registered trademark (U.S. Trademark Registration No. 2843235, inter alia). Yet not every time another entity uses the words, "Coke
nation products and maximize the revenues. But the companies involved in this practice are overlooking that they are burdening the patients both economically
" , "Coca-Cola" or even "Diet Coke" are they necessarily butting up against the Coca-Cola Company trademark's rights.
And that's mainly because of the doctrine of "fair use,
And that's mainly because of the doctrine of "fair use,
and physically. They need to rightly judge the benefits of the combination products and they have to even look at the risks involved when combining the produ
" of which there are two varieties: nominative and classic. When I go to a hot-dog stand, for example, and see the words "Diet Coke" scrawled on the chalkboard that serves as a menu, I can
ts. Some of the combination products were well accepted by physicians while others suffered. Companies involved in development of combination products are fi
e reasonably sure that the stand's owner hasn't cleared this use of the Diet Coke trademark with the Coca-Cola Company. However, neither do my trademark-infringement sensors fire at this blatant unauthori
ding difficulty in defining their combination products and facing various challenges from selecting a combination to marketing it.
Following aspects would a
Following aspects would a
zed trademark appropriation. And that makes sense. After all, how else could the hot-dog stand's owner communicate to me that I can purchase a Diet Coke there without identifying it as such? It wouldn't b
dd to the challenges in developing combination products:
Which markets to tap where the combination products can do fairly well?
Which combination prod
Which markets to tap where the combination products can do fairly well?
Which combination prod
e reasonable to expect the stand's owner to write, "Now Available: Low Calorie Carbonated Cola Beverage, Made by Famous Georgia-Based Company!" The easiest, clearest and simplest way to identify
cts are meaningful and rational?
Which therapeutic categories to select?
Which Combinations can address unmet needs of the patients?
Do combin
Which therapeutic categories to select?
Which Combinations can address unmet needs of the patients?
Do combin
Diet Coke is, well, by calling it Diet Coke, and this principal -- instant identification -- that is the soul of nominative fair use.
And that's what keeps us all out of Trademark Prison. OK, I'm still
And that's what keeps us all out of Trademark Prison. OK, I'm still
tions increase the patient compliance?
What would be the developing cost?
How to tackle the risks encountered during combination product developmen
What would be the developing cost?
How to tackle the risks encountered during combination product developmen
at the hot-dog stand. Only this time there is no Diet Coke offered on the menu. Instead, under beverages, appears, "Debbie's 'Scarsdale' Soda." Naturally, I'm curious. What is Scarsdale soda? Th
t?
As combination products don't fit into the traditional categories of drugs, medical devices, or biological products, the USFDA is in the process of devel
As combination products don't fit into the traditional categories of drugs, medical devices, or biological products, the USFDA is in the process of devel
en I notice that in parentheses beneath it there's a friendly explanation: "Like Diet Coke." At first blush, that appears to be a major trademark no-no. After all, in this example the hot-dog st
ping new procedures for reviewing their safety, efficacy and quality.
Professional from academic institutions, pharmaceutical industries, health care indust
Professional from academic institutions, pharmaceutical industries, health care indust
and does not even sell Diet Coke, yet is being extremely cavalier with the Diet Coke trademark. But since this use of Diet Coke is entirely descriptive -- to communicate taste, color, caloric count, and o
y and representatives from various regulatory agencies are working out to design the regulatory requirements for manufacture and sale of combination products
ther properties Scarsdale soda possesses -- this is permissible, and a classic fair use of the Diet Coke trademark.
A simple way to remember the difference between the two fair uses is that when you are
A simple way to remember the difference between the two fair uses is that when you are
.
As there is an increasing trend of the combination products companies manufacturing such products should be able to tackle the problems involved in the de
As there is an increasing trend of the combination products companies manufacturing such products should be able to tackle the problems involved in the de
using a trademark to identify the trademark holder's product, that is a nominative fair use. When you are using a trademark to describe a something other than the trademark holder's product, that is a cla
elopment. They need to be wiser in analyzing the market trends and the regulatory requirements.
Companies that provide selfless information through particip
Companies that provide selfless information through particip
ssic fair use. Still confused? Don't feel bad. This distinction drives even Federal Judges to distraction, but it's important. Good thing there isn't a Trademark Death Row in Trademark Prison. Yet, anyway
tion in industry events and feedback to regulatory authorities would be able to face the challenges and will be successful in developing combination products
HTTP = HTML link (for blogs, profiles,phorums):
<a href="http://www.advicepool.org.ua/article/130123/advicepool-Everything-You-Need-to-Know-About-Trademarks-and-Fair-Use.html">Everything You Need to Know About Trademarks and Fair Use</a>
BB link (for phorums):
[url=http://www.advicepool.org.ua/article/130123/advicepool-Everything-You-Need-to-Know-About-Trademarks-and-Fair-Use.html]Everything You Need to Know About Trademarks and Fair Use[/url]
Related Articles:
How To Make The Most Out Of Interactive Web Conferencing
Secured Finance - What Is It And How You Can Obtain It
Bookmark it:
|