Medicines are not general consumer products. Rather, they are regulated products and, as such, consumer law and state intervention via the Health Authority are relevant in this regard.
The pharmaceutical industry is a regulated activity in the sense that medicaments require government authorisation in order to be commercialised. As a result, registering a trademark with the Trademark Office is insufficient to guarantee its use on a pharmaceutical product, as the Health Authority must accept the name of the medicament at the time of issuance of the required marketing and sales authorisation.
The criteria adopted by the Health Authority for approving a medicament's name is different from that of the Trademark Office. This difference exists in all legal systems of comparative law.
As consumers and prescribing physicians cannot verify the efficacy, safety and quality of a proposed new pharmaceutical product, the state intervenes through the Health Authority.
The authority's job is to elide the disparity of knowledge between pharmaceutical companies, which have all of the available information regarding new products that they wish to introduce to the market, and potential consumers, who do not.
The Health Authority examines all relevant information to decide whether to authorise a product's introduction to the market, including its trademark or product name. It aims to ensure that a product's name will not cause confusion with other medicaments or give consumers a misleading sense of its qualities. In this regard, the Health Authority considers potential health risks that could occur in the event of confusion and error as regards trademarks or product names and how such confusion could affect physicians, pharmacists and consumers.
In its 1982 ruling in el Monaguillo, SA v Province of Buenos Aires, the Supreme Court of Justice decided on the double regulation issue, distinguishing the rights conferred by a registered trademark from its specific use on a regulated product. In its ruling, the court distinguished the guarantee of IP rights under the Constitution from their regulation, which is supported by consumer protection law. The court stated that than even when a trademark has been registered, the regulatory authority could prohibit its use due to the existing double regulation. However, the court emphasised that the regulatory authority must apply such criteria in a reasonable manner.
For further information on this topic please contact Daniel R Zuccherino at Obligado & Cia by telephone (+54 11 4114 1100) or email ([email protected]). The Obligado & Cia website can be accessed at www.obligado.com.
This article was first published by the International Law Office, a premium online legal update service for major companies and law firms worldwide. Register for a free subscription.
