Free-Riding for the Common Good? Generics, Biosimilars and References to Originator Trademarks in Comparative Advertising in France

Abstract

Abstract Generic and biosimilar medicines are fiscally advantageous products in relation to which the generally applicable EU rules governing comparative advertising seemingly conflict with national healthcare policy. This article argues that the permissive stance of the French courts on the use of the trademarked names of originator medicines in advertising for generics appears inconsistent with the case law of the Court of Justice of the European Union as it stands in relation to Art. 4(f) of Directive 2006/114/EC on misleading and comparative advertising. This gives rise to an undesirable divergence in the application of the Directive between Member States, suggesting that further guidance is needed on the application of the provision to generic-originator comparisons. It is submitted that treating generic drugs with particular leniency is unjustified given the detrimental effect the use of originator trademarks by the marketers of generics and biosimilars may have on the ability of the originator trademark to stimulate investment into manufacturing quality. The issue of the degree to which the use of originator trademarks in advertising promoting generics and biosimilars should be permitted serves as a poignant example of the delicate balance required for comparative advertising to increase consumer choice whilst simultaneously protecting competitors from advertising that may ultimately be detrimental to undistorted competition in the Single Market.