28
May/03

The Color of Pills


Plainitff Shire manufactures and sells ADDERALL which is prescribed for ADHD.  It moved to enjoin defendant Barr Lab’s generic alternative on the grounds that it infringed Shire’s trade dress in the shape and color of the pill.  The Third Circuit affirmed the refsual of the motion for preliminary injunction because Shire did not establish that its trade dress was non-functional.  The case has a thorough discussion of the functionality of color in medication.  The district court had credited testimony that color coding of meds was particularly functional for ADHD patients.

Manufacturers of branded medication will be reaching for their Zantac when they read the testimony from an executive from Rite-Aid, who testified that a generic drug’s visual similarity to the branded drug is in effect functional as it aids in the generic version’s acceptance.

Shire v. Barr, No. 02-3647 (3d Cir. May 23, 2003).

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