Non-Traditional Trademarks in the Pharmaceutical Sector: Non-Traditional Barriers to Access to Medicine?

Abstract

Over the years, many pharmaceutical companies have sought trademark protection for non-traditional aspects of their products. However, the potential consequences that could arise from granting such protection to pharmaceutical products have not received due attention from policy makers, especially in the case of access to medicine. The provisions regarding non-traditional marks in the leaked IP Chapter of Regional Comprehensive Economic Partnership is just one example in this regard. In this context, this chapter examines the question of whether protection for non-traditional marks could adversely affect access to medicine/health. For answering this, we first looked at how non-traditional marks operate in different jurisdictions and its prevalence in the area of pharmaceuticals. We have then attempted to analyse the potential consequences of non-traditional marks in the pharmaceutical sector from a law and economics perspective. Our analysis shows that protection for non-traditional marks in the pharmaceutical sector could pose significant barriers to access to medicine. This includes increase in transaction costs and new barriers to generic entry. Our study recommends that policymakers should take into account these public health aspects while framing policies with regard to non-traditional marks. We recommend more rigorous use of traditional trademark doctrines like functionality to prevent the rise of non-traditional barriers to access to medicine.