Tuesday, December 1, 2015

AstraZeneca Is Giving a Generic Drug Maker Heartburn

When I was in law school, one of the hot topics in the trademark world was whether "color per se" (color without more) could act as a trademark.  At the time, there was a Circuit split regarding whether "mere color" could receive trademark protection.  Some of the cases involved the color of fake sugar packets, the color of insulation, or the color of cleaning press pads.  In 1995, it was the cleaning press pads case where the Supreme Court resolved the question about the trademarkability of color per se.

In that case, the Supreme Court ultimately ruled that, as long as the color had acquired distinctiveness (secondary meaning), then it may obtain protection as a trademark.  In other words, if consumers came to understand that the color indicated the source of the product, then color is trademarkable.

Today, AstraZeneca is arguing that the color purple of its heartburn pill, Nexium, is a protected trademark.  In so doing, AstraZeneca is able to block a generic drug maker from selling its generic version of Nexium.  AstraZeneca notes that it heavily promoted Nexium as the "purple pill."  It is this big advertising campaign which helps consumers to come to connect a purple pill with Nexium.

If you have read this blog before, you will know that having a trademark registration allows a trademark owner to block the importation of infringing goods.  This is what I believe AstraZeneca did to the generic drug manufacturer trying to get its generic Nexium here.  If I were to guess, I would say that the generic drug manufacturer will have to choose a different color for its generic Nexium before it could sell it here in the United States.

Tuesday, November 24, 2015

Understanding California's Fair Pay Act

After the hack of Sony's e-mails and the revelation of the pay inequality in Hollywood between male actors and female actors, there was a call by some of the actresses for fair pay.  You may recall Patricia Arquette's acceptance speech at the 2015 Oscars wherein she called for wage equality.  That spawned action at the California Legislature to enact the California Fair Pay Act.  Gov. Brown signed the law in early October.  So, what does the law do, you ask?

Well, it ensures that male and female employees who perform "substantially similar" work are paid equal wages.  This language is broader than the "equal work" language in the prior law.  This is true even if they have different job titles or work in different offices of the same employer.  There is also an anti-retaliation component to the law which allows co-workers to discuss their wages with each other without fear of punishment by the employer.  Only merit, seniority, quantity/quality of production, or a "bona fide" factor other than sex that is a legitimate business necessity are allowable explanations for wage differences between male and female employees.  

All businesses (public and private) must comply with the law.  However, keep in mind that the business must have both male and female employees doing the same or similar work.  For example, most nurses are women.  If your company has only women who are nurses, then there is no way to apply the law because there would be no male nurse's wages to compare with the female nurses.  Of course, this "loophole" (for lack of a better term) existed in the prior equal pay law.  

With this law, California remains at the forefront of employee protection.  

Thursday, November 19, 2015

There is No Way to Sugar Coat It: Corn Syrup v. Sugar!!

UPDATE:  The parties settled the litigation in the middle o trial.  The terms of the settlement are confidential.

Earlier this month, the trial between the sugar industry and the high fructose corn syrup producers began in a Federal court.  The sugar industry sued the corn syrup producers for falsely claiming that their product is just as healthy as sugar.  Not to be outdone, the corn syrup producers shot back with a claim that the sugar industry engaged in a lengthy misinformation campaign.  It would seem strange that the two would be fighting over allegedly false claims about the health information of their products. This is especially true given that both products have been linked to a host of health ailments (obesity, tooth decay, diabetes--just to name a few).

The sugar industry claims that the corn syrup producers' ads claiming that corn syrup is "nutritionally the same as table sugar" and "your body can't tell the difference" between the two sweeteners is false. They further claim that the corn syrup producers know these claims are false.  The corn syrup producers counter that argument with a claim that the ads were an "educational campaign" to correct ten years of falsehoods made by the sugar industry about their product.  They also claim that the lawsuit is nothing more than the sugar industry's attempt to throttle its competition.

This one may be a fun one to watch.  Stay tuned!

Tuesday, November 10, 2015

Another Athlete Suing Over His Name and Likeness

As if FanDuel has not had enough to worry about recently, Pierre Garcon (Wide Receiver for the Washington Redskins) recently filed a class action lawsuit against it.  Mr. Garcon alleges that FanDuel used his name and likeness in marketing without his permission.  The lawsuit includes advertising using his name and likeness, as well as using his name and likeness in FanDuel's daily fantasy football contests.

While FanDuel asserts it did nothing wrong, it may want to look at how its competitor DraftKings handled the issue.  DraftKings entered into a licensing deal with the NFL Players Association allowing it to feature some of its players in marketing campaigns and daily contests.

It seems ever since Ed O'Bannon's lawsuit against EA Sports, this has become a hot legal issue.  Stay tuned to see how this one turns out.

Thursday, September 24, 2015

Update Regarding Lawsuit Involving Whether the Batmobile Enjoys Copyright Protection

A while ago, I wrote about a lawsuit wherein DC Comics and its parent company, Warner Bros. sued a gentleman who was making replica Batmobiles.  The defendant, Mark Towle makes replicas of the Batmobile that appeared in the 1960's television show starring Adam West as Batman and the 1989 movie with Michael Keaton playing the role of Batman.

In case you missed it, here is what the 1966 television version of the Batmobile looked like:



And, what it looked like in the 1989 movie:



As I wrote in my earlier piece, the court determined that the design elements of the Batmobile were not functional, and therefore, may be subject to copyright.  That ruling by the court meant that the next issue (or one of them) was whether the Batmobile was actually subject to copyright protection.  Well, the Ninth Circuit Court of Appeals settled the issue in favor of DC Comics and Warner Bros.  In so finding, the court found that the Batmobile's bat-like appearance and other distinct design elements like its high-tech weaponry, made it copyright-able.  In addition, the court noted that Mr. Towle appeared to try to use the Batmobile's fame in marketing it.  In particular, he had the website batmobilereplicas.com and advertised the vehicles as the "Batmobile."


Thursday, September 3, 2015

Google Tweaks Its Logo

Google recently tweaked its logo.  Its new logo uses a different font: sans serif rather than serif.  The change follows the lead of other technology companies who went through the same sort of logo transformation.  Undoubtedly, one of the ideas behind the change was to make the logo simpler.  Google explained that it was to reflect the fact that its users access its services from various platforms.  This suggests that Google's new logo is an acknowledgement of its transformation from strictly a search engine to a company with a broader array of services. 

To see the evolution of the logo, go to Google's official blog. 


Even if you are a small company, it is always a good idea to review your logo or trademarks with an eye towards freshening them up to better reflect your goods or services--or, the changing times.

Tuesday, August 18, 2015

WD-40's Formula Remains a Trade Secret

The formula for WD-40, the lubricant, rust protector, and squeak eliminator, is locked in a vault in San Diego.  Chemists invented it sometime in the 1950s to stop corrosion on the outside of the Atlas space rocket.  Amazingly, the chemists wrote the original formula in pencil on a notepad.  In order to maintain the secrecy of the formula, WD-40 mixes it "in house" and then sends the concentrate to its manufacturing operations.  From there, the manufacturers add some other ingredients and then put the product in the blue and yellow containers with the red cap. 

It takes quite a bit of work to maintain a trade secret.  Often, the secret or product is no longer useful or wanted by consumers.  It is amazing that the WD-40 recipe is still both a secret and in demand.  In fact, WD-40 keeps growing steadily.  Its growth is especially apparent in foreign markets.  Sometimes when you have "that" one product that you believe will be in demand for decades, it makes more sense to try and protect it as a trade secret rather than try to patent it.  It takes work and constant vigilance, but if successful, you can have protection for a very long time.  Whereas, with a patent, you get protection for a relatively short period of time. 

It is a good idea to conduct an annual review of your company's trade secrets in order to make sure that they keep their trade secret status.