IN VERITAS – The BayneLaw Advantage
  1. Home
  2.  → 
  3. Biotech & Pharmaceuticals
  4.  → Tips for trademarking new biotech and pharmaceuticals

Tips for trademarking new biotech and pharmaceuticals

On Behalf of | Mar 26, 2021 | Biotech & Pharmaceuticals |

Trademarking a new biotech or pharmaceutical product presents unique marketing and legal challenges. The process of trademarking a new pharmaceutical ideally begins with understanding the mechanics of legal compliance. There are some tips New Jersey pharmaceutical enterprises are wise to consider when on the brink of trademarking a new product.

Naming a new pharmaceutical

The naming of new biotech and pharmaceuticals necessitates the fulfillment of what fairly can be called a two-track process. The proposed name of a new pharmaceutical must go through processes maintained by both the Food and Drug Administration (FDA) and the United States Patent and Trademark Office (USPTO).

Make early submission to the FDA

A key strategy to employ when needing approval of a name for a new pharmaceutical is to submit multiple proposed monikers to the FDA as proactively as possible. The best practice is to submit more than one proposed product name to the FDA when a pharmaceutical is in the earlier states of development.

Proposed names for a new pharmaceutical in development specifically is submitted to the FDA Division of Medication Error Prevention and Analysis. The division focuses on reviewing names with an eye on preventing medical errors. A primary consideration is ensuring that a proposed name for a new pharmaceutical is not visually or auditorily similar to existing products. This is done because so-called sound-alike and look-alike errors can have grave consequences.

Registration of nontraditional trademarks

The U.S. Supreme Court has affirmed that nontraditional trademarks can now be registered with the USPTO. As a consequence, many pharmaceutical manufacturers are taking advantage of the ability to register what they perceive as unique colors, designs, and related indicia associated with a product. Steps to register nontraditional trademarks should also commence on a proactive basis, ideally when a product is in the development phase.

Ensuring successful trademarking associated with biotech and pharmaceuticals is better assured through the engagement of experienced legal counsel. A trademark attorney ideally is included in the overall process during the product development phase.