Drug Colour and Shape Similarity Not Protected

The U.S. Court of Appeals for the Third Circuit has ruled that the colour and appearance of a drug may not be protected by trade dress protection under the Lanham Act. In Shire US Inc. v. Barr Laboratories Inc., Barr had produced a generic version of Shire's drug Adderall. Barr's version appeared in the same colours as Adderall, and linked size and colour to dosage as was also done by Shire. Shire brought an action against Barr for trade dress infringement and trade dress dilution under the Lanham Act. Because trade dress protection does not extend to functional features of the product, in order to succeed, Shire was required to prove that the colour and shape of Adderall was not a functional feature of the drug. In its defence, Barr adduced evidence that the similar shape and colour-coding of the products were particularly meaningful to the patients. It argued that these attributes enhanced the efficacy of the drugs, and therefore constituted functional features. On a motion for a preliminary injunction, the lower court agreed and the motion failed. The appeal was dismissed. For the decision, visit: http://www.ca3.uscourts.gov/recentop/week/023647.pdf Summary by: Sue Diaz