Pharmaceutical trademark confusion: Poison Pill or Public Health?

Early in 2001, the Supreme Court established legal standards for lower courts to follow in pharmaceutical trademark infringement and passing off cases. The court warned that "drugs are poisons, not sweets," and set high/strict standards for determining similarity and confusion in pharmaceutical trademark disputes. To be sure, these standards differ from those that apply to non-medical products.

The need for a higher standard of medicine is almost self-evident. Confusion between medications can have negative health consequences. Even the presence of two drugs with the same active ingredient does not rule out the possibility that they are substitutes or can be used interchangeably. The composition, side effects, rate of absorption in the body, and other scientific parameters of drugs that treat the same conditions can vary. Each of these can have serious health consequences.

The court also cautioned that the sale of a drug by prescription (rather than over the counter) cannot be considered adequate protection against confusion. While doctors and pharmacists have specialized knowledge, they are not perfect. Confusion must be avoided and strictly assessed in order to reduce the likelihood of medical errors.

For all of these reasons, the Supreme Court stated that courts may not speculate on the likelihood of confusion between similar names. If there is any possibility of confusion, the use of confusing names must be prohibited in the public interest. According to the court, the public interest justifies requiring less proof of confusing similarity.