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Advice You - Use It or Lose It: Guidelines for Proper Trademark Use
Once obtained, trademark rights can last indefinitely. However, in order to protect and maintain these rights, a trademark owner must properly use their mark. It is important to remember that trademark rights are based on use. Thus, failure to use a mark properl
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
y or to prevent others from misusing or infringing a mark can result in an owner’s loss of trademark rights. The following guidelines for proper trademark use apply to advertising, correspondence, promotional material, displays, labels, packaging, signs, web sit
; 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
s, and any other media that uses, discusses, or describes the mark.
A. Use Proper Trademark Grammar
The most important rule of grammar regarding proper trademark use is that a trademark should be used as an adjective, not a noun or verb. Using the mark as an a
A. Use Proper Trademark Grammar
The most important rule of grammar regarding proper trademark use is that a trademark should be used as an adjective, not a noun or verb. Using the mark as an a
lude drug-coated devices, drugs packaged with delivery devices in medical kits, and drugs and devices packaged separately but intended to be used together.
jective helps distinguish the mark from the generic term it modifies. After all, a mark is used to identify the source or brand of a product, not the product itself. It is important to follow this rule to prevent your mark from potentially becoming considered ge
here is enormous increase in the number of combination products entering the market in the recent years. Combination products have proven advantages but fixe
eric. Examples of proper use include: KLEENEX ®tissue; APPLE® computer; and JACUZZI® hot tub. Note that each mark (adjective) is used to modify the generic term (noun). In fact, since trademarks function as adjectives, they should always be accompanied by the co
d dose combinations are still in the process of convincing regulatory authority on their advantages over the single ingredient formulations.
Combination pro
Combination pro
rect generic name for the product or service.
Other rules of grammar important to proper trademark use include avoiding the use of a trademark in the plural or possessive form. When referring to more than one trademarked product, do not pluralize the trademark.
Other rules of grammar important to proper trademark use include avoiding the use of a trademark in the plural or possessive form. When referring to more than one trademarked product, do not pluralize the trademark.
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
Instead, use the plural form of the generic product to which you are referring. For example, it would be incorrect to say “Could you pass me some kleenexes so I can blow my nose?” The correct statement should be “Could you pass me some KLEENEX® tissues so I can
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
low my nose?” Likewise, trademarks should not be made possessive. Rather, the generic product name should be made possessive. For example, it is improper to use “I really like Febreze’s fresh scent.” The correct use of the mark should be “I really like the Febre
nation products and maximize the revenues. But the companies involved in this practice are overlooking that they are burdening the patients both economically
e® air freshener’s fresh scent.”
B. Distinguish Your Mark
Trademarks should stand out from surrounding text. This helps to further distinguish the trademark from ordinary descriptive or generic terms. There are numerous ways to present a trademark to make it s
B. Distinguish Your Mark
Trademarks should stand out from surrounding text. This helps to further distinguish the trademark from ordinary descriptive or generic terms. There are numerous ways to present a trademark to make it s
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
and out. A non-exhaustive list of examples includes:
All capitals: VASELINE® petroleum jelly
Initial capitals: Kleenex® tissue
Quotation marks: “Channellock” ® pliers
Italics: Life Savers® candy
Boldface: Pizza Hut® restaurant
All capitals: VASELINE® petroleum jelly
Initial capitals: Kleenex® tissue
Quotation marks: “Channellock” ® pliers
Italics: Life Savers® candy
Boldface: Pizza Hut® restaurant
ts. Some of the combination products were well accepted by physicians while others suffered. Companies involved in development of combination products are fi
se of the word “brand”: Scotch® brand and transparent tape.
C. Identify Your Mark as a Trademark
There are several ways to indicate to the public that you are using your mark as a trademark or service mark. The most common way that trademark owner’s put others
C. Identify Your Mark as a Trademark
There are several ways to indicate to the public that you are using your mark as a trademark or service mark. The most common way that trademark owner’s put others
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
on notice that they are using a mark as a trademark or service mark is by using the symbols TM, SM, or ®. The TM symbol is used to identify an unregistered trademark, while the SM symbol is used to identify an unregistered service mark. Use of the TM or SM symbo
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
does not imply that a trademark application has been filed; it simply means that the term is claimed as a trademark. On the other hand, the ® symbol is used to identify a trademark or service mark that has been registered with the U.S. Patent & Trademark Office
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
Thus, the ® symbol should be used only in connection with a registered mark. Alternatively, there are other proper forms of notice for registered trademarks, including: “Reg. U.S. Pat. & Tm. Off.” and “Registered in the U.S. Patent and Trademark Office.”
It sh
It sh
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
uld be noted that use of a statutory notice is not required. However, to collect damages and profits in an infringement suit brought under the Lanham Act, statutory notice or the defendant’s actual notice of plaintiff’s registration is required.
D. Be Consisten
D. Be Consisten
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
Trademarks should be used consistently. Variations on how the mark is presented should be avoided. Failure to use a mark consistently can result in consumer confusion or dilute the distinctiveness of the mark. On the other hand, using a mark the same way every
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
time will enhance the distinctiveness, and thus, the consumer’s recognition of the mark.
Conclusion
The guidelines set forth above are by no means inflexible. However, by following the rules of proper use it will be much less likely that a trademark is used im
Conclusion
The guidelines set forth above are by no means inflexible. However, by following the rules of proper use it will be much less likely that a trademark is used im
y and representatives from various regulatory agencies are working out to design the regulatory requirements for manufacture and sale of combination products
roperly. Furthermore, adhering to these rules is likely to increase consumer awareness that a term is being used as a trademark. Thus, a trademark owner should ensure that their marks are properly used, or else run the risk of losing their rights.
© 2006, Galla
© 2006, Galla
.
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
her & Dawsey Co., LPA
November 2006
DISCLAIMER
We hope you understand that we cannot possibly give accurate legal advice to all inventors in a brief article on intellectual property issues that should be considered when starting a business. Accordingly, nothi
DISCLAIMER
We hope you understand that we cannot possibly give accurate legal advice to all inventors in a brief article on intellectual property issues that should be considered when starting a business. Accordingly, nothi
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
g in the above is intended as specific legal advice to any person. Such legal advice can only be given by a qualified practitioner after a careful review of all the individual facts. We urge you to consult us, or another licensed professional, before you proceed
tion in industry events and feedback to regulatory authorities would be able to face the challenges and will be successful in developing combination products
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