Trademark Strategies for Life Sciences Companies

Why Do Brands Matter?

In the life sciences fields, including biotech, pharmaceuticals, and medical devices, trademark and trade dress are useful forms of intellectual property that protect the branding, look, and unique features of products and even research services or platforms unique to your company.

Strong brand protection helps companies stand out and achieve market success. The appearance and name of a product helps healthcare professionals, patients, and consumers instantly distinguish between options, and in an industry where patient safety is crucial, trademarks create trust and loyalty by ensuring patients receive a product of consistent quality and efficacy. A trusted and unique trademark adds value to a company, enhancing its market position and influencing how consumers perceive the brand.

Trademark Longevity

Trademarks and brands play an important role in communicating goodwill long after other forms of intellectual property have expired or generics have been allowed to enter the market. Consumer goodwill associated with a brand is priceless and is a shorthand way of identifying and reaffirming all that consumers and partners value and trust about a company and a product. Strong trademark protection also keeps competitors from profiting off the reputation of the brand, by protecting against adoption of confusingly similar marks.

Trademarks also drive price and purchasing decisions. A trademark confers credibility and communicates the source of the goods. A recent article in Fortune magazine noted that branded pharmaceuticals cost an average of 79% more than generic drugs. And many categories of consumers are willing to pay the premium for the trust and goodwill associated with the brand name.

Trademark strategy is particularly key in the life sciences and pharmaceutical spaces. Trademark protections can extend long past patent terms so long as the trademark identifies the product or collaboration using the technology. Brands can help maintain consumer loyalty even as competitors enter the field. Strong trademark protection, including registration and a thoughtful international portfolio, can also help enforce and deter infringers.

Forms of Trademarks in the Pharma and Life Sciences Space

Trademarks that identify drug brands are typically given a wider scope of protection than marks in other industries, in an effort to prevent confusion between prescriptions and in dosing. This is one of the reasons life sciences and pharmaceutical companies often select made-up words as brand names — even if they are difficult to pronounce. Trademarks take many forms and are defined as an indicia that identifies the source of a product or service. These can include:

• Words (including made-up words)
• Phrases (slogans)
• Symbols
• Designs
• Configurations
• Colors
• Sounds
• Smells
• Tastes
• Textures
• (Or a combination of the above)

The trade dress of a product, including the appearance of a drug (e.g., packaging, labeling, specialized applicator, pill shape and color, and inner and outer packaging) can also be protectable as a trademark to the extent such elements are not functional. A classic example is Pfizer’s registration of the blue color and diamond shape of its Viagra erectile dysfunction tablet.

Trademarks Are Evaluated Differently in the Pharma Business

Life sciences companies face unique challenges when it comes to brand selection and protection. Pharmaceutical trademark owners must surmount two hurdles before they can use and register their trademarks in the U.S. For U.S. Food and Drug Administration (FDA)-approved products, clearing a drug name is a two-step process:

• Trademark Registration: Brand owners must obtain approval of the USPTO to obtain federal trademark registration.
• FDA Approval to Use: Brand owners must obtain approval from the FDA to use the pharmaceutical name. Both the USPTO and the FDA purport to accept only names that will not cause confusion between drug names, both agencies compare different universes of data in making these determinations, and apply somewhat different standards.

The USPTO will consider whether the proposed brand name is confusingly similar to marks that are already applied for and registered as trademarks. Often pharmaceutical companies apply for several alternative brands for a single product launch, and the USPTO’s search may therefore result in a refusal to register a mark based on a trademark that will never appear in the FDA database.

In contrast, the FDA looks at nonproprietary pharmaceutical names, established USP-NF monographs, generic names, and trademarks approved for use by the FDA but not yet applied for or registered. Approval from both agencies is ultimately necessary before a brand can be considered available for use as a new pharmaceutical trademark.

Anti-Counterfeiting/Enforcement

Counterfeiting is a global concern, reaching virtually all industries in all countries. Pharmaceuticals are one of the most-counterfeited products, with studies attempting to quantify the counterfeit drug market estimating the total global sales between $200 billion and $431 billion annually. The World Health Organization (WHO) estimates that 10.5% of medicines worldwide are substandard or falsified.

Trademarks give companies the tools needed to protect their exclusive rights, preventing competitors from using branding that could cause confusion. But it is important to be proactive and put the necessary tools in place to enforce against bad actors. In particular, brand owners should consider:

• Recording trademarks with Customs to help stop importation of counterfeit goods
• Registering internationally in the countries in which the product will be sold or manufactured or where you maintain business relationships
• Defensively register in countries with large or growing economies, or those known to be bad actors.
• Consider copyright protection for design marks
• Monitoring services — trademarks, domain names, online/websites

Final Recommendations

• Think about branding early: allow adequate time to search and clear a mark before using it in clinical trials, promoting it within the industry, or submitting it to the FDA.
• Conduct a proper clearance: invest up front in a trademark/FDA clearance search conducted by an attorney experienced with pharmaceutical marks.
• Consider international strategy, including cultural and linguistic factors, ensuring that trademarks resonate globally and avoid misinterpretation.
• Be original: avoid words that look or sound similar to existing brands, do not borrow from an existing brand or generic name, do not use pharmaceutical stems as a prominent part of your drug name, and choose unique trade dress.
• Proactively register in geographic areas of interest.
• File for alternatives: the USPTO recognizes the challenges of obtaining FDA drug name approval and, for that reason, considers the filing of alternative drug names to be a bona fide intent to use a mark in commerce, as required to support an application.
• Collaboration between marketing and legal: a successful branding program requires buy-in from the entire business.
• “Think outside the name” of the product when considering brand expansion and trademark registration. Slogans, logos, product, and packaging appearance are just a few ways that marketing can help with creating brand identity, which may be registrable with the USPTO.

This article appeared in the 2025 Life Sciences IP Tool Kit.