Archive | 2013, April | (3) posts

Beer lovers sue for trademark dilution

Trademarks are, among other things, a guarantee for a certain level of quality. If the quality slips, the consumers may go for a different, competing product. But sometimes consumers seem to stick to their favorites.

An unusual lawsuit has been filed in the US, where consumers have filed a $5 million class action against Anheuser-Busch. The lawsuit involves 10 Anheuser-Busch products, one of them being Budweiser. The consumers accuse Anheuser-Busch of cheating them of alcohol content as stated on the labels of the bottles. Moreover, the lawsuit accuses the company of diluting their beer to boost their profit margins. Therefore, unspecified compensatory damages are sought for anyone in the United States who has bought Budweiser products in the last 5 years.

Strangely enough the lawsuit is not based on the consumers discovering a difference in taste, but on information from former employees of breweries owned by Anheuser-Busch. According to former employees the company allegedly, as a matter of common corporate practice, water down all of their products mentioned in the lawsuit.

One of the California plaintiffs says she bought a six-pack of Budweiser every week for the past four years, and says she feels cheated. One might wonder why she didn’t taste the difference in just one of those 1248 bottles of Budweiser she apparently bought over the years.

Anheuser-Busch calls these allegations completely false, and states that their beers are in complete compliance with labeling laws, and that they proudly adhere to the highest standards in their brewing process.

What is interesting in this case is that usually the dilution of a trademark is caused when a later similar mark leads to dispersion of the earlier mark by making it less distinctive or unique. Therefore the holder of a well-known trademark is allowed to oppose to later applications which would be detrimental to the distinctive character of his earlier mark. However, in this case the action based on dilution of the trademark is brought by consumers. This is rather unusual, and it will be interesting to follow the case.

Finally it will also be interesting to see whether the European consumers will act equivalent to the Americans, especially bearing in mind their relationship with beer. Even though class actions are rather rare within the EU, it is not as if the consumers lack the opportunity of filing such these days. Both the peculiar taste of Black Beauty in beef lasagna and now the watered down beer might also encourage European consumers to bring action against large companies.

Maria Dam Jensen, Associate

India’s Supreme Court rejects patent plea by Novartis for the cancer drug Glivec

For years, India did not offer any patent protection for chemical compounds, but was obliged to do this after joining the World Trade Organization. In 2005, the patent protection act therefore was amended to also include such compounds, but only if they proved significant clinical efficacy enhancements over already patented compounds, Section 3(d) of the Indian patent law.

The battle for the cancer medicine Glivec in India has been going on since 2006, when Novartis’s patent application for Glivec was rejected. The application then was rejected based on the law aimed at preventing companies from getting new patents by making only minor changes to existing drugs, a practice known as “evergreening”.

In 2009 Novartis filed a Special Leave Petition with the Indian Supreme Court, challenging the decision to reject a patent for Glivec and also challenging aspects of the Indian patent law,  since Novartis considered the concept of innovation was too narrowly defined. Specifically at issue was Section 3(d), since Glivec is a salt formulation of the already known molecule Imatinib.

In the beginning of April 2013, the Supreme Court rejected the arguments from Novartis and came to the conclusion that Glivec is not novel, not inventive and does not satisfy Section 3(d). In this contect, it should be noted that Glivec has been patented in nearly 40 countries including US, Russia, China and Taiwan.

Ranjit Shahani, Vice Chairman and Managing director, Novartis India Limited, commented the outcome, saying “We brought this case because we strongly believe patents safeguard innovation and encourage medical progress, particularly for unmet medical needs. This ruling is a setback for patients that will hinder medical progress for diseases without effective treatment options”.

“The Supreme Court’s decision now makes patents on the medicines that we desperately need less likely. This marks the strongest possible signal to Novartis and other multinational pharmaceutical companies that they should stop seeking to attack the Indian patent law.” said Dr Unni Karunakara, MSF International President, one of many organisations celebrating the decision.

In view of the decision of the Supreme Court, viewed alongside other recent patent setbacks for Bayer (see previous blog) and Roche (see previous blog), Novartis, as well as other multinational drug companies, are concerned about the deteriorating innovation environment in India, and will probably carefully evaluate whether to launch new drugs in India in the future.

Jeanette Jakobsson, European Patent Attorney

Over n’ Out

The trainee program is over and the twelve of us who started more than seven months ago have spent some time out in the offices getting a feel of what this trade is all about. With at least a few years of experience from research and development work at excellent companies I would like to claim that my previous experience allows me to state that being a patent attorney is a trade dissimilar to a vast majority of engineering jobs that are out on the market. There is a particular skill set required, which makes it very difficult to practice this trade if you figuratively were to be dropped behind enemy lines, as is sometimes the case in engineering. This trade requires not only engineering skills and knowledge of patent law and convention, but also the difficult knowledge of how to put this into better practice, something which is not suitable for learning as you go along. Indeed, the challenge is that there are so many possible modes of practice and that the result of a practitioner’s labor will be put to test by skilled opponents who will deliberately and thoroughly search for any weaknesses.

The trainee program contains the building blocks for a solid foundation of this skill set. A lot of hard work has been required to absorb the knowledge and to deliver the tasks given to us. And several late evenings were spent hammering out texts that would be closely scrutinized by our experienced senior attorneys. Quite similar to how carefully apprentices’ work are reviewed by masters of a trade.

With a long and rigorous education I feel confident that Awapatent has provided us with a solid enough base to take some pride in our work and I think that this is proved by the realization that in the last theory period I learned as much from the thoughts and comments of my fellow trainees as from our senior colleagues.

Peter Kollegger, Associate