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CHATTEM PAMPRIN TRADE DRESS CONSENT ORDER

Executive Summary

CHATTEM PAMPRIN TRADE DRESS CONSENT ORDER v. PENNEX requires Pennex to revise its private label menstrual relief product package labeling and advertising. The consent order, entered May 9, directs Pennex to halt production of "any label, labeling, packaging, advertisement, capsule color combination or other promotional device which imitates or is confusingly similar to the packaging, capsule color combination or trade dress now used for Chattem, Inc.'s Maximum Cramp Relief Formula Pamprin." The consent order stems from a trademark infringement suit filed on Feb. 26 by the Chattanooga, Tennessee-based OTC mfr. against Pennex Products Co. in federal court. According to the document, Pennex will be permitted to sell "the 1,050 dozen finished products which were in its inventory and packaged for sale as of the date this action was commenced on Feb. 28." While prohibiting the use of colors "closely approximating red, yellow and/or orange in connection with an OTC menstrual relief product," the court order does permit Pennex to use two colors, identified as Pantone 130C and Pantone 159C, in a horizontal bar format similar to an exhibit provided in the document. However, the Pennex acetaminophen/pamabrom/pyrilamine maleate combo packaging may not have the words Maximum Cramp Relief or Maximum Cramp Relief Formula appear "in bold, block or other highlighted facing on the principal display panel," the court order states. Chattem's suit alleged that Pennex's "selection and use of the trade dress for its menstrual relief capsules was with full knowledge of Chattem's Pamprin trademark and the distinctive trade dress utilized by Chattem for its Maximum Cramp Relief Formula Pamprin brand of menstrual relief," and that Pennex's use had been without the consent of Chattem.

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