Ignoring Drug Trademarks

If you walk into a pharmacy with prescription for Merck’s ZOCOR, which contains simvastatin, the pharmacist will probably give product containing simvastatin made by another company. The dispense “generic” product. State generic substitution laws, passed in 1970s to help government save money switching patients cheaper drugs, either permit or require this substitution. But drug brand names -- such as ZOCOR are trademarks. Like other trademarks, they distinguish goods market from others, and signal source of goods. These state laws essentially treat words something else. As soon drugs available, law instructs read name written doctor an instruction different company's This is opposite how trademarks supposed operate. Article examines history over last century half, well relationship between two, against backdrop evolving industry, regulatory framework, improvements science. It shows that anomaly our legal system. Substitution at was illegal, it still otherwise illegal. created exception broke long-standing policy food unfair competition law. also were intended to, did, undermine proprietary (trademark) rights. done achieve savings payers, after efforts mandate prescribing failed. points out, much has changed since 1970s. framework changed, science evolved, research development industries have healthcare finance system utterly different, among parties delivery so on. therefore concludes reconsidering (and criticizing) substitution, benefit clear understanding its equivalents role trademark patents expired. prioritizes short-term cost dynamic pro-competitive benefits properly functioning And although more than 40 years old, point important today, because hostility devotion inform scholarship proposals today.