Moderator: Maria J. Fernandez Marques, Pfizer Gmbh (Germany)
Christopher Hanes, GlaxoSmithKline (United States)
Branding clinical trials: benefits in making the physician
like the drug/recall it later. Acronyms
used to assist recall. Ask yourself:
will the brand be used to recruit patients?
Where/in what countries? Have to
consider this in context of TM search. Also consider whether brand will be used
with education services as well.
Once investigational product receives approval, more
opportunities. Benefits include
facilitating engagement with medical community—allows company to participate in
developing scientific understanding with leading experts. Also provides access to patients/better
patient compliance. Also helps payors if
patients benefit.
Branding diagnostic tools—some of them are more on the
descriptive side; consider whether they qualify as source IDers. Also consider copyright issues in developing
test; sometimes developed with external scientists. Consider copyright with respect to consent to
use the materials. Sometimes materials
are validated based on presentation: permission may be conditioned on verbatim
use.
Disease awareness websites directed at consumers offer other
branding opportunities: can give general info about various treatment options
along with info about conditions/diseases.
Mobile apps are increasingly important: e.g., help migraine patients
track their own conditions. TheUsInLupus
site: support network, not talking about products specifically. Health education resources: targeted at
organizations or individuals.
Generic strategies: alternatives: company name plus generic
term; umbrella brand for multiple products; single name for each product.
Ulrich Reese, Clifford Chance (Germany)
Pitfalls: Pharma TMs play a critical role in product life
cycle. Need different brands preapproval, postapproval, and after patent
expires. All must take into account
business aspects as well as regulatory framework.
Main regulatory principles for may/most markets: prohibition
on premarketing nonapproved products.
Prohibition on confusing brands and on promoting prescription drugs to
the general public (many countries including EU). Prohibition on abusing a dominant position
impeding generic competition: beware antitrust.
Take into account rules on generic substitution for prescriptions.
Branding clinical trials connects product to a trial. But you don’t want to take an invalid head
start. Are you barred from communicating
about data being produced? Yes and no.
May not market, but may communicate
scientific information, media, investor advisories. Linedrawing must be case by case. General rule: product related information
should be nonpromotional in nature, tone and content; should be targeted to
special interest group like doctors; focused on what is necessary to satisfy
particular requests for info. Intent is
relevant.
What does that mean for branding clinical trials? Can be illegal if trial brand is used as a
proxy for the marketed product or is designed to promote product instead of
facilitating scientific communication.
Room for reasonable/balanced use exists.
Name choice: note extra constraints—invented name shouldn’t
have misleading therapeutic connotations; shouldn’t be likely to be confused
with another drug generic or brand name when handwritten, etc. Written from consumer protection perspective
to avoid medication errors. Invented
name must not be too similar to the generic.
Very complicated to satisfy all constraints.
Limited room for communicating with non-healthcare
professionals. Branding information is forbidden.
After loss of exclusivity: most countries have rules on
substitution. Doctors may be under
obligation to prescribe a generic. Even
if doctor prescribes original, pharmacist may be under obligation to substitute
a generic. What about texture or
appearance? May be unable to enforce
rights in that too in order to further substitutability. Mitigate risk of substitution by
pricing/rebate schemes for payors; market communication on sensitive product
characteristics (small differences can be important for things like narcotics
and other dose-critical drugs; differences in bioavailability); strong
footprint of original (payors may like to tell people that they cover the
original). Antitrust authorities will be
watching closely, though.
Hanes: in searching, be sensitive to differences in Class 5:
a traditional supplement won’t necessarily pose much of a barrier. But search must expand to cover services as
well.
Reese: you will always find TMs that come near your choice;
60% will be turned down on that ground; 50% of the remainder will be turned
down in the regulatory process. Need plan B, C, and D.
Competitor’s Use of Keyword Advertising and Search Engine
Optimization (SEO): Hey! They’re Using
My Trademarks!
Moderator: Brian Isaac, Smart & Biggar/Fetherstonhaugh
(Canada)
Have to consider how to rank high on organic results as well
as monitor sponsored results.
John Ramsey, Rosetta Stone Ltd. (United States)
Company quickly realized it needed to deal with TM online. In ongoing litigation with Google over much
of what we’re talking about, so constrained by that. Keyword: how folks try to find you and how
other folks try to take advantage of your brand.
Brand owners invest in affinity, trust, recognition; brand
owners are forced to bid against everyone else to get their sponsored links to
appear. If you have lots of rogue/pirate
sites, in addition to confusion/traffic diversion, you have incremental
increase in your own bid cost. Must
police paid and organic search results. Harm is already done from our perspective if
an ad sells counterfeits. That traffic and
the experience they have at that site impacts their experience looking for your
brand. Process for TM owner to address
each instance of infringement is asymmetric to the ease with which a
counterfeiter can register and start a business online. Search engines are a gateway for rogue
websites. Either counterfeits or data
mining for nefarious purposes. Fair
amount of traffic comes from organic results, despite money spent on ads.
Everyone is trying to figure out how to appear high in the
organic results. Rosetta has found
itself outranked on its own product: how could that be? Domain name squatters, though domain name
alone isn’t enough; need content.
Gobbledegook backlinks, hidden at the bottom of the page where the
consumer won’t see that; though search engines are getting wise to that. Black hats try new techniques now that search
engines are wise to link farms. Register
100 Rosetta sites, populate with content, then link to each other; finally all
link to one domain, which then shows up at the top rank. Taking out one link in the chain wouldn’t
affect the top.
We have FAQs on login, headphones, etc. Counterfeiters took the titles of our
articles and copied all the content and built pages to raise their
ranking. Our own knowledge base wasn’t
getting indexed so we weren’t getting the juice and they were.
Can’t face this alone.
Need a plan. Are your tools TM,
copyright? Company buy-in to enforcement
is key because it affects all levels.
Increasing geotargeting is a new challenge: sites disappear
depending on where you monitor from—they’d buy ads everywhere except
Harrisonburg, where our office is.
Redirects: send DMCA notice, and the ISP says “there’s no Rosetta Stone
content on this site!” because of the redirects. Keep apprised of platform ToU. Often you can send a legal notice through
TM/copyright forms, but can get faster results by complaining about a terms of
use violation. Complaint policies change
periodically. Google has different
policies about what it will and won’t investigate depending on the
country.
Look for opportunities to coordinate with other brands. If they’re doing it to you, they’re probably
doing it to someone else.
Howard Hogan, Gibson, Dunn & Crutcher LLP (United
States)
Represented American Airlines in lawsuits against Google and
Yahoo! But will try to give both sides’
perspectives. Search engines are
unalloyed public goods. Not government
agencies, not charities; they do it to make money and wouldn’t do it if they
couldn’t profit. Economic model that’s
developed is designed on getting people to click on one part of a results page
rather than another, and that’s true whether you’re talking paid or
organic. All the social research
indicates that people hate ads. Genius
of search engines: their system works, whether it’s fair or not, to get people
when they are in the frame of mind to click on a link to buy something. They only need a small percentage of
searchers to generate massive profits.
Law is reactive. Last
battle was use in commerce. Moved on: Network Automation. Then Rosetta
Stone v. Google. A piece of the
latter which hasn’t drawn attention is that the 4th Circuit went
further on discussing Google’s in-house confusion studies at the time Google
decided to start selling keyword TMs.
94% of internet users are confused at some point about TMs. District judge said those weren’t Rosetta
Stone users, but 4th Circuit said the jury could infer from them
that it is more likely that Rosetta Stone-searching users were confused. Also reversed district judge’s exclusion of a
sponsorship survey. It’s not just a question of whether people will think that
Rosetta Stone sponsors Google or v.versa but rather whether the links are
confusing. (Why isn’t this only a basis
for secondary liability, not direct liability?)
Google vigorously argued lack of intent: just trying to
allow comparative advertising. 4th
Circuit concluded that, with the internal surveys, Google balanced the risk of
litigation against the boost in revenue from allowing TMs and concluded that a
reasonable jury could infer intent to cause confusion (not indifference?). Court wasn’t willing to allow presumption of
confusion from this evidence. 4th
Cir. created a mini-split with 9th on importance of strength of the
mark; 4th said you wouldn’t consider strength very important because
in any nominative use case you’d expect some strength, whereas 9th
Cir. said that mark strength was a highly important factor. Also important: reversal of district court’s
functionality ruling. Duration of
confusion: we don’t know how long people spend on the sites; they may simply
click away when they recognize it’s not what they want.
Are consumers getting more sophisticated? One new study seems to confirm that consumers
don’t know what’s advertising and what’s not.
Some are very sophisticated, and some are very unsophisticated.
American Airlines: tried to get best reasonable estimate of
how many consumers might have come back to AA after first being diverted, so
that they wouldn’t overclaim damages.
Jeff Livingston, author
Social media: comments, links are necessary; keywords fail
without the required content. If people
don’t find American Airlines on your site, they’ll go back. If they see there are no peer
reviews/discussion, they’ll go back. Now
see dummy Twitter accounts/retweets created; that won’t work when a real person
sees the site. Unwillingness to mention
competitors makes it hard to become an industry leader: insults customers to
pretend that the competition doesn’t exist when you are in fact looking at
everything they do and reverse engineering them when they’re good. If you say you’re doing good, you can also
say your competitors are doing things, and why you think yours is better (e.g.,
for the environment). That provides a
lot of relevant links/keywords and prompts discussion: good karma.
Google rep in Qs: Hey, we have pretty good counterfeit
algorithms—90% of sites removed for counterfeiting are detected automatically.
We also respond within 24 hours to any report, and have a spam site reporting
tool.
Me: why isn’t this contributory infringement? How can it be
direct by Google?
Hogan: lawyers argue it’s both; Google has taught people to
expect the first result to be the TM owner.
Studies show that consumers can’t tell ads from organic.
Me: Ok, but as direct
infringement that implies two things: (1) Google’s liable for the organic
results; (2) Google’s liable even when the first result is the TM owner,
because consumers expect some sort of authorization relationship. I just want an explanation based in TM law for
the direct v. secondary claims.
Hogan: organic is different than paid search.
Me: you just said consumers can’t tell the difference; you
can’t have it both ways.
[missed some further questions/discussion, including about
the revenue models of these sites.]
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