It may come as no surprise to some that a means to extend leverage for a product or brand beyond a patent term is the successful implementation of a comprehensive trademark portfolio. This is especially true in the pharmaceutical industry where a product life cycle could be exploited beyond the term of a patent by developing a portfolio of trademarks to boost and protect a brand image in the marketplace so that long after a patent expires, consumers continue to use the brand instead of switching to generic versions that may cost less.
Creation of a comprehensive trademark portfolio is no easy task. In essence the process is akin to developing a no-holds-barred media awareness program. That is why more and more pharmaceutical companies advertise their products on television and in the print media. Educating the public in addition to the doctors and pharmacists clearly adds an advantage as the images of products play into the minds of the consumers. In home-care medical devices are also heavily advertised.
In Brand New Challenge (see winter 2006 issue of IP Review), Pfizer is mentioned as a company doing just that. Pfizer has built an instantly recognizable brand for Viagra through key trademark registrations. Who doesn’t know about the little blue diamond shaped pill?
It seems that the trick is to trademark all of the distinctive elements of a product, such as the name, logo, shape and color of the product. At the very least, this will make it difficult for knock-off companies to produce products that have similar attributes.Of course, there are some drawbacks. As more and more trademarks are filed, it will become increasingly difficult to secure federal protection for brands. Also, developing names for products, especially for pharmaceuticals, will become more difficult – the Food and Drug Administration has a stringent policy for accepting new product names.An interesting question is whether a trademark protection policy could work for products in other technology industries?
In fast-paced technology sectors, products may die off before the expiration of a patent, so it seems less necessary to invest in this type of brand development. However, for other technology areas where products have longer life cycles, it may seem fitting to invest in the development of a strong brand identity.One key element to remember is that trademark protection can last well beyond the twenty year patent limit, so long as the trademark remains in use. It will be interesting to see how well trademarks continue to protect products long after their associated patents have expired.
Rodney D. Ryder
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