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A bitter pill to swallow | Canada | Norton Rose Fulbright

A bitter pill to swallow

April 2012 Authors: Patrick E. Kierans, Kristin Wall


In the April 2012 issue of Intellectual Property magazine, Patrick E. Kierans and Kristin Wall assess the challenge of acquiring and asserting shape and colour trademarks for prescription drugs for the innovative pharmaceutical industry.

While many are familiar with drug advertisements for the “purple pill” (Nexium®) or Viagra®, the unique shapes and colours of prescription drugs may not benefit from traditional trademark protection.

To explore whether or not patients regard the shape and colour of prescription drugs as trademarks, Kierans and Wall conducted a series of focus groups in Canada involving four larger groups of 38 patients and eight smaller groups of no more than 28 patients. The focus groups revealed that the shape and colour of prescription medicines do have traditional trademark significance for patients.

Kierans and Wall suggest that as part of a way forward, a more patient-centric approach is necessary for successfully establishing shape and colour trademark distinctiveness for prescription drugs. They also suggest ways that innovative companies should continue to undertake proactive marketing strategies to better develop, protect and enforce shape and colour drug branding.