Big pharma’s attempts only cause more confusion and anxiety

In the pharmaceutical industry, trademark and trade dress protection have led many patients to believe that brand name and generic drugs truly differ. This differentiation is not grounded in rational concerns regarding manufacturing quality. Instead, a more nebulous and pernicious psychological reaction accounts for consumer preferences. This Article contends that pharmaceutical trademarks and trade dress not only fail to accomplish the core goals of trademark protection, but also undermine them. In differentiating their drugs from generic products, brand name companies ultimately confuse consumers, leading them to believe that branded and generic drugs are distinct products. This confusion, in turn, impedes effective generic competition and reduces patient adherence to prescription drug regimens, ultimately increasing health care costs and morbidity. The replacement of pharmaceutical trademarks and trade dress with manufacturers’ marks would greatly reduce the negative psychological impact associated with pharmaceutical advertising while still enabling consumers to ascertain the source of their medications. Furthermore, the concerns expressed in this Article foreshadow a potentially greater naming problem on the horizon. This past August, the FDA released its Draft Guidance for naming biosimilar products—the generic versions of biologic medications.282 The Federal Trade Commission (“FTC”) just responded to this draft guidance, voicing strong concerns that the FDA proposal could lead to exactly the type of confusion this Article describes.283 As the FTC report explains, “FTC staff is concerned that FDA’s proposal— to assign different suffixes to the drug substance names of biosimilars and their reference biologics—could result in physicians incorrectly believing that biosimilars’ drug substances differ in clinically meaningful ways from their reference biologics’ drug substances, especially since differences in drug substance names have traditionally connoted meaningful differences in drug substances. A misperception that the drug substance in a biosimilar differs in clinically meaningful ways from that in the reference biologic could deter physicians from prescribing biosimilars, thus impeding the development of biosimilar markets and competition.”284 The problem described in this Article and the recent FTC report will only continue to grow in significance as biologic patents expire and biosimilars rush onto the market. As a result, it is imperative that policy makers begin to address the confusion trademarked pharmaceutical create and consider eliminating them altogether.