Over their commercial lifespan pharmaceutical products attach a plethora of visual signs. These are on packaging, marketing materials, and even on the pills. The latter may carry signs pointing to the originator company or to what the product is or is for. But they can also be signs themselves that communicate – or miscommunicate – much more. It is likely that the quantity of signs correlates with a given product’s sustained commercial success seeking to maintain and extend market power. This chapter explains why this is a meaningful observation and in doing so implicates intellectual property (IP) rights protecting signs rather than just patents. Salient questions include: What do these signs actually communicate to the public and health professionals including pharmacists and physicians? What impression is the sign intended to make, in light of signage-crowding? The latter phenomenon is common with pharmaceuticals whereby several signs populate the marketplace which may interlock in commercially complementary but semantically confusing and sometimes unstable ways. And third, what are the commercial stakes including implications for competition? It is now well known that companies seek to secure exclusivities, market power, and profitability for periods that go well beyond the twenty years afforded by the first active ingredient patents. However, the role of trademarks is downplayed in most narratives. We posit that the commercial value of assembling and deploying a portfolio of signs and attaching them to products to broaden and sustain market power is well understood by industry as well as by professional marketing experts. We claim further that a major feature of such strategies, facilitated by the psychologically shrewd use of non-traditional trademarks, is the registration of signs for uses that deliberately confuse and mislead, as well as to monetise plausible placebo effects. We find that trademarks enhance non-IP ‘residual protection’ of originator products, potentially well beyond the lifetime of any patents. We do not, as others have done in the past literature, look at the issue of regulating access and pricing of pharmaceutical products by focussing on the evergreening phenomenon effect of patent protection of pharmaceuticals. Instead, we focus this chapter on the reality that pharmaceutical lifecycle management strategies combine patents and trademarks to extend and sustain the market power of drug companies to an extent patent laws cannot achieve alone.
CORE (COnnecting REpositories)
CORE (COnnecting REpositories)