18
Jul/03

Today's Trademark Brain-Teaser


LEVITRA is the name of a new drug used to treat sexual dysfunction.  It will compete with VIAGRA (see here).  It has been approved for use elsewhere and is expected to be approved for use in the U.S. soon.  Its manufacturer owns a U.S. registration under Section 44 (ownership of a foreign registration) but would likely be eligible for a use-based registration, as use in pre-approval trials is deemed to be trademark use.

If you put LEVITRA into search enginges, you will see that it is already a hit with the paid-keyword crowd (one of whom referred to it as a VIAGRA drug, thus mis-using two trademarks at once).  At least one of the ads I saw may well be deemed to be infringing.

Question.  LEVITRA is a registered mark in use with an already substantial reputation, but it is pre-sales (although it appears that there may be importation from Europe now).  If it is infringed today, how are damages calculated?  Defendant may or may not have profits, plaintiff has not lost sales.

MOST INTERESTING ANSWER SO FAR:  Scott of New York writes in to suggest that plaintiff could move for defendant to pay for a remedial advertising campaign to repair pre-launch damage to reputation.

Great Dane postcard available here.

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