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Jumat, 02 September 2016

My My Mylan: The Trademark Silver Lining for Mylan's EPIPEN

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My My Mylan: The Trademark Silver Lining for Mylan's EPIPEN

Mylan Pharmaceuticals received a huge amount of press in the United States recently.  Why so much (negative) attention?  Mylan is under heavy criticism for raising the price of its popular and very useful--even life saving--EPIPEN.  Not only are U.S. Senators upset, but the media and public are outraged by Mylan's pricing.  Is all of this publicity good or bad for Mylan?  From a trademark perspective, it appears it is both.


The EPIPEN epinephrine pen is a combination drug device used to deliver a dosage of epinephrine for allergy sufferers.  An article in Bloomberg titled, How Marketing Turned the Epipen into a Billion Dollar Business, recently discussed the incredible success of the EPIPEN.  The CEO of Mylan, Heather Bresch, embarked on an education campaign about the dangers of allergies with parents of children.  She then engaged in a very successful campaign lobbying and educating legislators about allergic reactions.  This led to federal legislation concerning the availability of EPIPENs in schools as well as schools stocking the product which expires after one-year.  The plan is to essentially have every place where people congregate with an EPIPEN on hand--and required by law. 

Mylan's Action.
Notably, the EPIPEN may soon face increased competition from generic versions of the EPIPEN.  However, CEO Bresch noted that there is nothing to worry about because of the strength of the EPIPEN brand--essentially the power of the trademark should maintain hefty profits even if the patents become less important.  Doctors apparently know the brand very well and often prescribe the EPIPEN by name.  In a post last year on the IP Finance Blog, I questioned whether EPIPEN is in danger of genericide.  Many trademarks have become generic, such as Elevator and Escalator, and thus have lost trademark protection.

I'm allergic to dumplings.
Interestingly, EPIPEN is the combination of the first three letters of the active ingredient epinephrine and the next three letters for the word "Pen," which is descriptively what the product itself looks like.  Moreover, the EPIPEN is hugely popular and it is possible that all devices shaped like a pen and which dispense epinephrine may be called EPIPENs. This is the danger of the recent publicity--I have already seen and heard media members referring to all epinephrine dispensing devices as EPIPENs, including using the word as a noun and not as an adjective.  As I noted on the IP Finance Blog, "the Boomberg News Article stated: "And for doctors, who write prescriptions for the name they know best, the EpiPen brand 'is like Kleenex,' says Robert Wood, a pediatric allergist at Johns Hopkins University School of Medicine."  Policing media usage is not very effective in the U.S. and the best case is likely attempting to educate the media and public concerning Mylan's trademark rights.

On the other hand, the massive bad press may be good for the trademark protection of the EPIPEN. Mylan is clearly being named as the source of the EPIPEN epinephrine pen--letting the public know that there is a single source for the EPIPEN epinephrine pen.  Thus, Mylan's trademark protection may be getting stronger by the day because consumers, including prescribing doctors and pharmacists, may understand that EPIPEN is a trademark for epinephrine pens coming from Mylan.   Thus, all publicity--even bad publicity--is not bad, at least from a trademark perspective. Fortunately for Mylan, the publicity is not even about the product being terrible--the underlying message is that Mylan's product is amazing.



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