Dollar and Senses: Pharmaceutical Product Design is Becoming Vivid

Abstract

Prilosec purple, Viagra blue, and Prozac green and cream: pharmaceutical product design is on the rise, and the future is even brighter. As design features come into view, protection against copying is critical to maintaining the effectiveness of these source-identifying marks. The current state of trademark law allows drug manufacturers to prevent competitors from producing similar medications with the same appearance or identifying design feature. However, while most courts have been increasingly sympathetic to product design protection, these tools are not yet being fully utilized by the pharmaceutical industry. This paper describes the current state of trademark and trade dress protection of pharmaceutical product design, such as color, shape, and flavor and provides insight into why pharmaceutical companies have yet to take full advantage of available trademark and trade dress protection.