Generics get Court to expunge Advair Diskus design mark
In a decision released yesterday, Justice Barnes sided with a number of generic drug makers and ordered Glaxo Group’s OBLATE SPHEROID Design mark, pictured to the left, expunged.
The Court considered evidence from physicians, pharmacists and patients. The Court said,
I am satisfied from this evidence that colour and shape are not the primary characteristics by which GSK distinguishes the Advair Diskus inhaler from the wares of its competitors or, more significantly, by which its purchasers make their choices.
and
In conclusion… the question which arises here is “what does an unlabelled two-tone purple circular inhaler mean to a physician, pharmacist or patient” to which the same answer applies – not enough for a finding of distinctiveness.
