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23 October 2017
Trademarks play an essential role in the marketing of pharmaceutical products. Not only do they distinguish one product from another, they can also be extremely useful – even after the expiration of the patent term – for maintaining consumer loyalty to a certain medicament.
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 name of the medicament must be accepted by the Health Authority 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.
From the viewpoint of a trademark as an IP right, Argentine law does not contains specific rules concerning the risk of confusion between the trademarks of pharmaceutical products.
There are opposing views in legal literature and case law as to whether common or stricter criteria should be applied when assessing the likelihood of confusion.
Arguably, each case should be analysed separately in order to determine which criteria should be applied.
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 IP rights as guaranteed 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 Health Authority could prohibit its use due to the existing double regulation. However, the court emphasised that the Health 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@example.com). The Obligado & Cia website can be accessed at www.obligado.com.
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