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The pharmaceutical industry may have lost its ability to differentiate prescription drug tablets from generic imitations in light of the Third Circuit’s decision in Shire US Inc. v. Barr Laboratories Inc . 1 Traditional trade dress jurisprudence has long recognized a cause of action whereby a national brand-name manufacturer can sue to protect its product’s identity from a generically manufactured facsimile. Such an action normally arises when a generic manufacturer copies the appearance of a brand-name product, thereby gaining instant product recognition based on the brand-name manufacturer’s established marketing and accumulated goodwill. 2 Trademark common law and the Lanham Act protect brand-name manufacturers from such unfair trade practices. 3 Over-the-counter drugs are packaged in containers bearing manufacturers’ names and markings, enabling consumers to differentiate between, for example, Ecotrin™ aspirin and generic CVS store brand aspirin. 4 When a generic manufacturer’s label is sufficiently similar to that of an established product, the Lanham Act dictates that the generic manufacturer must cease selling its product. 5 Even when products, i.e., tablets, are physically identical, packaging labels serve as sufficient identification of their source.

What's in Your Bottle?: Shire US Inc. v. Barr Laboratories Inc. and Its Effect on Prescription Drug Trade Dress Protection in the Third Circuit