GENERICIDE IS SOMETHING WE CAN ALL CHEER
LULULEMON JUST SUED COSTCO FOR RIPPING OFF THEIR DESIGNS.
GENERICIDE IS SOMETHING WE CAN ALL CHEER
I grew up eating Vanilla Wafers which have been a reliable cookie jar staple since 1898 when they were first introduced. But in 1967, after 70 years of successful sales, Nabisco abruptly changed the name to Nilla wafers apparently for legal reasons. Rest assured, as Juliet once said: “A rose by any other name would smell as sweet” and the wafers are just as tasty as ever even if the packages and contents continue to shrink.
While “Nilla” was a protectable name that could be trademarked, “Vanilla Wafers” had become a victim of genericide which – as consumers – is one of the few “-cides” that we can all cheer for. Sadly, those sweet treats had become so common and popular that their name came to be regarded as generic and thus joined the ranks of such other brand names as Zipper, Aspirin, Cellophane and Escalator whose owners had failed over the years to consistently attempt to preserve their legal and proprietary status.
Mondelez International, which now owns and manufactures Wheat Thins, just filed a federal lawsuit in Chicago to stop Aldi from selling store-brand products which blatantly copy and infringe on its trademarks. The crafty and innovative marketers at Aldi have been selling crackers called Thin Wheat which Mondelez arguably believes that customers just might confuse with Wheat Thins. Of course, consumer confusion is probably the very least of their concerns. The truth is that Aldi doesn’t even sell Wheat Thins in its stores. The full name of their own cracker offering is Savoritz Thin Wheat Crackers. Just to add to the irony and the injury, Mondelez also owns Ritz Crackers.
When the topic of trademarks usually arises (typically among lawyers who are nothing if not nitpickers), the classic examples of aggressive and successful lifelong litigants are Kleenex and Xerox (still protected) and, more recently, Google. It will be interesting to see what happens with ChatGPT and Ozempic. With millions of dollars in sales involved and huge investments made by large companies in building brand equity, you can be sure that the rip-offs, the hairsplitting, and the lawsuits will never end.
Patent and trademark enforcement has become an important economic tool for all manner of merchants and - when it’s regularly abused as it has been for decades in the drug business with the continued blessed of bribed Congressmen – it ends up costing consumers millions of dollars in inflated pharmaceutical prices because it keeps important and widely-used drugs which have been around for decades from becoming generic and subject to lower-cost production, duplication and distribution of generic versions of the same drugs by other manufacturers.
Genericide (trademark or patent expiration) is the worst nightmare of companies like AbbVie, AstraZeneca and Bristol-Myers. Low-cost competition is a close second. Mark Cuban’s CostPlus drug company (
https://www.costplusdrugs.com/
) might well be in third place. And to be very clear, this isn’t something trivial. There are thousands of lives in the balance even as MAGAt enabler and Iowa Senator Joni Ernst snidely notes that “we all are going to die” eventually. High prices make it harder for millions of consumers who need the drugs to access and afford to pay for them.
One of the main ploys of the pharma frauds is to artificially extend expiring patents and trademarks (which would open the market to generics) in order to continue to suppress and exclude competition and keep prices as high as possible. This approach – often called “evergreening” consists of reformulating the same drug into extended-release versions, creating new delivery methods, changing dosages, and seeking broader and additional uses for the drugs. All of these strategies are accompanied by massive ad campaigns and direct attacks on the efficacy of substitutes and any generic alternatives.
AbbVie, for example, was able to secure and maintain exclusivity in the U.S. market for Humira for over 20 years after initial approval. AstraZeneca built Nexium (“The Purple Pill”) into a 5-billion-dollar annual product line by rebranding an older drug, claiming it was a new and improved version, and limiting distribution. Bristol-Myers litigated for years with various generics and conducted repeated lengthy trials in order to prop up and build Abilify into a 9- billion-dollar product line
There’s some modest good news on the horizon although much of it will need to await the departure of the Orange Monster and his flunkies who are comfortably in the pocket of Big Pharma.
Increasingly, and especially after the pandemic which effectively democratized and dissipated much of the mystery of medicine, millions of consumers are wising up and moving from the expensive brands to store-brands, OTC products and generics. (See https://www.inc.com/howard-tullman/reimagine-your-brand.html.) Much more needs to be done in order to break through the ongoing consolidation of drug manufacturers; to break down the price-gouging medical oligopolies; and to reform, improve and actively enforce all of the available legal and administrative regulations and limitations.
We can live with bands like the Eagles and Led Zeppelin extending their shelf lives and livelihoods by replacing dead band members with their somewhat talented sons – our music is certainly important – but our medicine is life-changing and lifesaving. We shouldn’t tolerate or accept parasitical pharmaceutical companies which delay and defer the availability of critically important drugs for years in order to maximize their profits.