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, 'Sue color and shape imitators' Brand name Rx drug makers are urged by lawyer to act against firms he claims facilitate substitution Too many of the natiun',, drug makers are being unnecessarily Vic- timizecl by generic hcnt.es that mar- ket out tabletz. and capsules designed t(, louk like their brand names o;unter113rt~,. So savs New Z urk City attorney havmund Mc:%lurray. In a talk before the Food an(l I)ruf* Law Se:- tiun of the American Bar Assn, :Nlr. \lcalttrray asserted that "the pre- scription drug inclustrc, because of an ttnffirtnnate serie< of e.•ents- legi,lative and judicial-is right ncAN" sufi-ering gross unfair comheti- ti,)n ancl i~- cloing virtually nothiny abwt; it. 1 believe that the imitaticm uf the shal,e, color. and other clis- tinguishing feature~~ nf an Rx drug it, trnfair competition and I believe it is actit.,nable and enjoinable." Wary:Accrrrclingtc~ Mr. '\lc'.\Iur- ray, the anti-drug industr% clinlate prnrlu:ecl by the liefauver and sub- sequent Congressional drug field iiive,titratinn~, has tnacle drug firms wary about moving against other companies that imitate the color, size and shape of their products. The other factors, says 'Mr. Mc- Murray, are 2 1904 Supretne Court dle-i5ic,ns %vhich held that the anti- trust prohibition against unfair cuntl,etitic,n due~, not extend to the mere copying of unpatented or un- traclemarkecl product features. Unwarranted: It is 'tlr. :\lc:\lur- rav's contention that, in this con- text, lumping prescription drugs together with all other cummodities is unwarranted. "I believe the verv act of such imitation is an act of bad faith and must be enjoinable," he sad. "1 be- lieve the law is decidedly this way- and even if it might allow a certain amount of imitation of non-func- tional features in other commercial products, the very nature of Rx drug distribution requires a higher stand- ard.'*11 , AMERICAN DRUGGIST • September 7, 1970 No option: One of Jlr. '~lc ~lur- ray 's argtunents was that. with re- spect to most products, the buyer has an opportunity to compare the "copied" item with the original. The purchaser of prescription drugs does not have this operation. he said. "It must be obvious that, in this unique circunutance the patient purchaser is entitled to his doctor's choice of drugs and that he should not have to run the hazard of using some other drug. Httt the slavish imitator makes it possible ... a pharmacist to substitute. accirlen- tall.• or deliberatelv, the intitator'~ pro ~cluct." By design: He told ANti:RtcAx DRt-c;GtsT that capsule and tablet imitation by many generic hrtu~es i> done by design, and then merchatr clised to prospective pharmacist cus- toniers. He noted that cataing, of a number oi these firms shecihca?^.N ehlphasize the fact that their hrod- ucts look like branded items. I 3 SICK MICE-HEAR HOW THEY COUGH (BURP) Recent governrment actions an cycla- rnates and other drug and food ingredi- ents and products have brought forth a wide range of reactions-critical, laudatory, and in-between. Here are the views of one outspoken advertising man, Jerry Della Femina, ofjered in the column he contributes regularly to the magazine Marketing!Communica- tions. Mr. Della Femina is president of Della Femina, Travisano & Partners, New York City. This is a story about three mice. Now these aren't the three blind mice, but they are three very sick little mice. The time of our story is in the year 1984. T1we p1acr is a government test- ing laboratory. The kind of govern- ment testing laboratory that 16suef a proclamation every few months that scares the pants off you and me. It is evening and two of the mice. Mickey and Freddie, are discussing the third mouse Walter, who has been ab- sent from their cage for the past six months. Freddie: I tell you (cough. cough) that Walter has lucked out. They're testing something really big on him. Mark my words. Walter (cough, cough) will go down in mouse history as the rodent who ruined some billion- dollar industry. Mickey: And here we are a couple of hae-heens. You, still being forced to smoke 25 packs of cigarettes a day and me (burp) the mouse who caused the big cyclamate scare (burp) in semi- ret'vement. Freddie: Cyclamates-boy, that was a great day for you. Mickey: I remember it now. The~ force-fed me Fresca. The equivalent of a human drinking 300 (burp) cans of Fresca a day for seven years. Then they tested me one day and found out 1 was a sick little mouse. They ordered champagne and celebrated. They is- sued a proclamation that cyclamatr: had to be taken off the market, but the, forgot to mention that I was drinkine 300 cans a day for seven years (burp i. An obvious oversight. Freddie: In 1970 they toek tomato juice off the tnarket, In 1971 it N•as apples. In 1972, candy. in 1973, ice cream. In 1974, spaghetti. In 1975. her- ring. Mickey: I wonder what R'alter't; contribution to amarakind will be ? He%. look, here he comes. Boy, do" he look Rick. a'alter. Walter, what did they test on you? Walter: One of the great ezperi• ments in history. 1, Walter Mouse, shall go down in history as the mouse whc ruined the cheese industry. Freddie: Cheese? Mickey: Cheese? Walter: Cheese. We've proven be- yond a shadow of a doubt that cheese in massive dosea, will destroy a mouse's health. And tomorrow everyone in the world will lrnow that if you eat 600 pounds of cheese a day for 140 years. your health will be in serious danger- Mickey: Gee, I used to love cheese. Freddie: I must confess a fondness for cheese, too. Walter: Boya, I feel the same way, but we mustn't let our personal feel- ings get in the way of progress. Science (burp) marches on. lnJerpieting fHe News • 35

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