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13 Cards in this Set
- Front
- Back
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Why is it challenging to obtain a trademark registration for a pharmaceutical product?
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Pharmaceutical Companies select a mark years before a product is ready to launch.
As a result, timing becomes an issue because drugs take years of research, clinical trials, and various stages of FDA review. By this time a trademark application could lapse. |
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Since USE IN COMMERCE is required for registration, what unique aspect of the USE is related to the trademark of a pharmaceutical product?
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Use can be satisfied by the use of the mark in a clinical trial. Therefore, unlike most other products, the trademark product does not have to be used in the marketplace.
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How must the mark be used in connection with pharmaceutical products that are in clinical trials?
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Adequate use of a pharmaceutical mark is made when:
(1) the mark is applied to the pharmaceutical product or its packaging, AND (2) the product is sent in interstate commerce for use in a clinical trial |
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Can a blind clinical trial support USE IN COMMERCE? (meaning, the mark is not seen by the researchers or the subjects)
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No, the mark must be visible during the clinical trial.
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What is the result of basing use of the mark on the clinical trial?
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The mark could be registered before the product is marketed to the general consuming public. Which is a deviation from the normal rule that the trademark must be used on goods offered for sale in commerce.
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How long does an applicant have to show USE of the mark after a notice of allowance has been filed?
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3 Years (Six - 6mos. extension = 3yrs)
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If a product is not likely to be launched during the allowance stage what strategy could be exercised?
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RE-FILING - an application should be filed as soon as it is discovered that the company will be NOT able to launch the product within the allowance period
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Why does the re-filing strategy recommend filing an ITU application as soon as possible, instead of waiting until the current ITU application ends?
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In a trademark challenge, the FIRST USER of the mark has senior rights. ITU applications can claim use from the date of filing. Therefore, having the earliest filing date can be critical. This is why filing a new ITU application as soon as possible is important, even if the current application has not yet gone abandoned.
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Since there cannot be identical applications on file for the SAME mark for the SAME goods, how can a mark be refiled as soon as possible while the other mark is pending?
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The refiled application will have to include a VARIATION from the original application.
For example if the original application is a Wordmark for VANNTRIX, then a second application can be filed with a variation such as a design element or a stylized font. |
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If the original application expected to go abandoned is a word mark and the re-filed application is for a stylized design. Can the applicant ever secure the Wordmark?
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Yes, once the application for the word mark goes abandoned, another application can be filed. But, this does not eliminate the importance of having filed an application for the variation of the mark while awaiting for the mark to go abandoned.
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IN GENERAL, can a slogan be placed upon the product or packaging and function as a trademark?
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YES - a slogan can function as a trademark and be placed on the product or the packaging.
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How is the general rule re: trademark slogan use on packages different when applied to trademarks for pharmaceuticals?
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FDA regulates pharmaceutical packaging. The FDA prohibits pharmaceutical companies from placing marketing slogans directly on their products or packaging.
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Since slogans can not be used on pharmaceutical products or packaging, what is one way that a slogan may be used in connection with a pharmaceutical product?
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A trademark registration can be obtained for a slogan as it is used on a display associated with the pharmaceutical product.
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