(2000; 91 pages)
3.10 Trademarks, public health and drugs
Trademark protection is usually considered to be in the interest of consumers, since it avoids confusion about the origin or manufacturer of a product. At the same time, trademarks protect companies which invest in quality, since they cannot easily have their products confused with similar products from different companies. This should provide incentives for companies to invest in the quality of their products, which ultimately benefits consumers.
Trademarks and public health
But trademark protection is not always in the interest of the consumer. An example related to public health is the case of baby food and infant formula in Guatemala. Guatemala, following WHO advice, discouraged pictures of fat, healthy babies in advertisements and on packages of infant formula. Such photos, public health experts found, incite mothers to buy infant formula even when this is unnecessary and unaffordable. Moreover, there is a considerable risk of incorrect preparation, as a result of which these products could become harmful. But one company, when told to remove the baby picture from it packages, complained that this was a violation of its trademark and, as such, against international agreements. They even involved the US government in the issue. Eventually the Supreme Court of Guatemala overturned the domestic law which - for public health reasons - banned such advertising, based on the idea that it violated an international trade agreement.
This shows that in some developing countries, courts give more deference to international trade agreements than the US courts would. Judges in US consider their country and its laws to be sovereign. Furthermore, it is not sure that the Guatamalan law indeed was conflicting with international trade agreements, but authorities were made to believe it was, and this had consequences.
In a similar case, the Canadian Government refrained from passing pro-public health legislation banning distinctive packages for cigarettes, after being warned that this might be against the rules of international trade agreements signed by Canada and that it could lead to litigation.
So obviously, trademark protection can affect public health measures.
Trademarks and drugs
A number of issues are important with regard to trademarks and drugs:
• National requirements that the generic name (INN) is printed on the package of a medicine. Some companies claim that this undermines the economic value of their brand, and on several occasions the US government has thrown its weight behind such companies. However, national legislation in the US requires exactly the same.
• Obligations for generic prescribing (common in the public sector; sometimes also in the private sector), and
• Permissions and/or incentives for generic substitution by pharmacists; both are at times said to be violating trademark rights, even though they stimulate competition and can help to make the best use of limited health budgets.
In all these examples, there clearly is a public interest that ought to be protected.
Another issue in this context is the so-called ‘trade dress’ protection. Trade dress in the context of medicines refers to the appearance of a drug, for example the specific shape or color of the tablets. Originator companies try to prevent imitation of the trade dress of their products; they try to stop the generics from looking similar. But from a public health perspective, there are some arguments in favor of generics looking similar - though not necessarily the same - to the original product, since this would reduce confusion and therefore medication mistakes. This is especially important in situations, such as in the US, where insurance companies require frequent switches between different branded or generic versions of the same product, based on the outcomes of price negotiations.
There has been a case in which a Canadian court ruled that the public health reasons for permitting a similar look were more important than commercial interests. Even so, at the moment, the relation between patient compliance, medication errors and trade dress protection for drugs is not very clear, and would merit further study.