Counterfeit Drugs And Trademark Law

All around the world the problem of counterfeit medication is growing in magnitude.  For some time it has been known that a substantial proportion of anti-malarial medication is fake.  It is thought that the widespread use of counterfeit malaria medications has contributed to the rise of drug-resistant malaria.  Recently, counterfeiting has expanded to other drug categories such as blood pressure and oncology.  Counterfeit drugs, officially classified as spurious/falsely-labeled/falsified/counterfeit medicines (SFFC,) are generally substandard versions of marketed drugs with inconsistent dosing, mislabeled ingredients and other serious shortcomings.  The problem has reached alarming proportions in the developing world where up to 30% of brand name drugs sold are counterfeit.  In some parts of Africa and Asia estimates are as high as 50%.

In contrast, about 99% of the medications sold in the U.S. are genuine.  One of the reasons for this disparity is the zeal with which U.S. companies protect their trademark rights, and the penalties for trademark infringement.  In addition to millions of dollars worth of civil liability, criminal sanctions are available for the most serious instances of trademark infringement.  According to the Trademark Counterfeiting Act of 1984, trafficking counterfeit goods or services can result in a fine of $250,000 and up to 5 years in prison.  Intellectual property law is the subject of (often valid) criticism from a variety of circles.  It’s easy call a prison sentence for trademark violation draconian when the counterfeit goods are handbags or high heels.  When the counterfeit goods are cancer medications or malaria drugs for children, its easier to accept why the penalties are so harsh.

Sources: http://www.plosmedicine.org/article/info:doi/10.1371/journal.pmed.0020100

The Greenbaum Patent Blog is the blog of Eric A. Greenbaum esq, founder of Greenbaum P.C., an intellectual property law firm located in Long Island New York.  The firm focuses on patent and trademark prosecution, licensing and contract work for independent inventors, small companies and start-ups in New York City (NYC,) Long Island and around the country.  Intellectual property law is a rapidly evolving field of law and the issues are very fact-specific.  Nothing on this blog should be taken as legal advice.  Consult with an attorney for help on your particular case.  

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