Anticompetitive effect of drug name trademark registration: lessons from China

Abstract

The Chinese Trademark Law does not entirely exclude the possibility of generic names being registered as trademarks, which is inconsistent with the international standards. The necessity and rationality of allowing the trademark registration of drug names are worth of further research. This study analyzes the rules and cases that involve the trademark registration of drug names and makes comparisons with international counterparts. It displays that in Chinese judicial practices, drug name listed in the National Drug Standards may be registered as a trademark if it has acquired distinctive characteristics by use, which contradicts the nature of generic names and may exert an anticompetitive effect and have adverse implications on the development of the related drug industry and patient well-being. This study proposes that the drug name sign is different from descriptive sign, and cannot obtain distinctiveness through use. Based on the particularity of the drug industry, the trademark registration of drug names in the National Drug Standards should be prohibited. This arrangement is conductive to addressing the imbalance of interests among drug operators and safeguarding public health. This study can provide insights and policy recommendations for Chinese lawmakers offering a framework to reconcile trademark protection with the pharmaceutical industry’s unique characteristics and regulatory demands.