Re: drug colors

On 8/11/99, Cappone D'Angelo <cappyd[_at_]uvic.ca> wrote:
>
> Interesting. Does this extend to give the consumer a right to bring
> an action, or is consumer protection simply a factor to be considered
> in an action brought by the holder of the mark? In Canada, I believe
> the courts have expressly stated that trademark law is NOT intended
> to protect the consumer (in the context of pharmaceuticals). I'd be
> interested in reading up on this - could someone refer me to a leading
> US case where consumer protection was given weight by the court?

I don't believe that consumers have standing to sue, although consumer protection _is_ the basis of trademark laws, since the usual issue is likelihood of confusion; the goodwill and trademark rights inure to the benefit of the trademark holder, but the goal is to prevent consumer confusion.

With regard to drugs, I believe that the pharmaceutical companies argue that the colors of the tablets and capsules is important, especially with elderly users of their products. While no cases come to mind readily, the McCarthy treatise (3d ed.) sec. 7:45 n.6 cites a few cases and three secondary sources on the subject. I hope this points you in the right direction.

S. Martin Keleti
COHEN AND COHEN
740 North La Brea Avenue
Los Angeles, CA 90038-3339
(323) 938-5000 (tel)
(323) 936-6354 (fax)
keleti[_at_]manifesto.com

***PLEASE NOTE NEW AREA CODE*** Received on Fri Aug 13 1999 - 01:09:54 GMT