The New Intellectual Property of Health
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The New Intellectual Property of Health

Beyond Plain Packaging

Edited by Alberto Alemanno and Enrico Bonadio

This timely book provides the first legal and policy analysis of the intellectual property (IP) aspects of a rapidly-growing category of regulatory measures affecting the presentation and advertising of certain health-related goods, namely tobacco, alcohol, food, and pharmaceuticals.
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Chapter 4: Trademarks in the pharmaceutical sector: the dynamic between brands, proprietary names and labelling regulations

Jeremy Blum


The ever-increasing regulation of pharmaceutical products provides challenges to pharmaceutical businesses trying to create and maintain a strong, lasting brand around their product. Whilst a patent for an active ingredient, for example, might prevent other traders from launching a rival product with the same active ingredient, the patent is finite and post-expiry anyone can use the same active ingredient. What will differentiate the original product from the rest will be the brand and trademark features of the product with which the public might have become affiliated over the patent period. In many countries, including the UK, there is a general policy for products off-patent to be prescribed generically. However, even with such a policy, it is not possible to always prescribe generically and the figures in 2013 were that about 83 per cent of medicines in the UK were prescribed generically (with about 75 per cent prescribed and dispensed generically) once the patent expired. This means there might be roughly a 20 per cent market share for branded prescription medicines. The strength of a brand, in particular where a patient trusts the brand and has used it for many years, is a key contributor to the market retention when a medicine becomes generic as well as when it is sold over the counter (OTC) in pharmacies. The strongest form of protection for a brand, including pharmaceutical ones, is through registration, in order to clearly denote and claim exclusive rights to the use of a particular trademark for designated goods and services.

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