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Trademark and Unfair Comp.

Trademark and Unfair Comp. Boston College Law School October 12, 2004 Genericism. Bayer v. United Drug 272 F. 505 (S.D.N.Y. 1921) (Hand,J.). Drug Names. Advil (ibuprofen) Zantac (ranitidine) Viagra (sildenafil) Prozac (fluoxetine). Potential for Confusion. Harm to Competition.

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Trademark and Unfair Comp.

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  1. Trademark and Unfair Comp. Boston College Law School October 12, 2004 Genericism

  2. Bayer v. United Drug272 F. 505 (S.D.N.Y. 1921) (Hand,J.)

  3. Drug Names • Advil (ibuprofen) • Zantac (ranitidine) • Viagra (sildenafil) • Prozac (fluoxetine)

  4. Potential for Confusion Harm to Competition Policy Considerations High Secondary Meaning Unprotectible Protectible Low Generic Descriptive Suggestive Arbitrary Distinctiveness

  5. Generic Thermos Escalator Trampoline Cellophane Nylon Yo-Yo Generic? Velcro Post-It Notes Band-Aid Plexiglas Kleenex Frisbee Realtor Other Marks

  6. Policing Your Mark

  7. Thermos Survey E.g. “if you went into a store to ask for a vacuum-insulated container, what would you ask for?” Teflon Survey E.g. “is ‘TEFLON a brand name or the name of a type of product?” Surveys

  8. AOL v. AT&T243 F.3d 812 (4th Cir. 2001)

  9. Hypothetical • BEST OF BOSTON • Boston Magazine uses term for annual survey • Boston Phoenix wants to conduct similar survey and use term “Boston Phoenix’s Best of Boston List” • Survey: 75% of public associates BEST OF BOSTON w/ Boston Magazine

  10. 1-800-GENERIC • 1-800-Number Cases • 1-212-MATTRES v. 1-800-MATTRES • 1-800-HOLIDAY v. 1-800-H0(zero)LIDAY

  11. Administrative Details • Next Assignment • V.B - Abandonment

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