Pharmaceuticals can often benefit from patent protection. This gives the owner a monopoly on this product; however, the monopoly will only last for a fixed period, after which it will be open to competitors. Choosing a strong, resilient brand name will help foster brand loyalty and encourage customers to continue buying your product even when other (potentially cheaper) products have become available. Obtaining a trademark registration for your trademark allows you to prevent other businesses from profiting from your brand’s loyalty / success. It also offers protection against substandard products marring your hard-earned brand recognition.
Pharmaceutical brands require regulatory approval. In the UK, the appropriate body is the Medicines and Health Products Regulatory Agency (MHRA). The MHRA will reject a proposed pharmaceutical brand name if it believes that: (i) consumers will confuse the chosen name with the name of an existing drug; (ii) the name chosen is misleading; or (iii) the name chosen is considered dangerous. Regulatory approval is required before a drug product can be sold under the chosen name.
The assessment of the mark by the MHRA is entirely separate from the assessment carried out by the UK Intellectual Property Office (UKIPO) if / when a UK trade mark application is filed. UKIPO will reject a trade mark application if it considers the mark to be descriptive or not distinctive (eg ‘strong medicine’ or ‘cough mixture plus’) – these terms should remain free to use by anyone. If UKIPO decides that the trademark name meets this threshold, it will publish it for opposition – this is where an objection can be filed by the owner of a conflicting earlier right. It is strongly recommended that you perform a brand research before selecting a brand name in order to get an idea of the brand’s risk profile and the likelihood that a third party objection will be raised.
A trademark registration is generally valid for 10 years and can be renewed for successive 10-year periods, potentially indefinitely. However, keep in mind that owning a trademark registration does not entitle you to sell a pharmaceutical product under the registered name, regulatory approval is required for this.
Recommendations in light of the above:
- Start the naming process as soon as possible
- Choose brands that are distinctive and memorable, not those that describe your products (or features)
- Consider several potential names, or at least have backup alternatives in mind.
- Search the MHRA and trademark registers at an early stage
- Subject to the results of the research, apply for registration of your trademarks