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Executive Summary

PAR PHARMACEUTICAL SEEKING SUPREME COURT REVIEW IN INDOCIN LOOK-ALIKE case to determine the functionality issue of color in drug trade dress. Par's attorneys, Bass & Ullman, argued that the Third Circuit decision in a Merck suit vs. Par for copying Indocin colors runs counter to the Supreme Court's 1982 decision in the Ives Cyclospasmol look-alike suit (Inwood). Under the functionality decision in Inwood, Par contends, "there should have been a finding of functionality" in the Indocin case. The Third Circuit in the Indocin case, "applied a different rule," Par maintains. "It announced a new rule that a trade feature is not functional, as a matter of law, if other companies were able to enter the market without imitating that feature, even if there are legitimate reasons to imitate." Since the Supreme Court's Inwood decision, Par said, "so-called brandname mfrs. have chosen the U.S. District Court for the District of New Jersey and the Third Circuit as the forum of choice for obtaining injunctive relief against use by generic mfrs. of the same size, shape and color for generic drugs as the brandname counterparts. In these cases, the courts have either granted the injunctive relief sought, or the defendant obtained a settlement to avoid burdensome litigation." Par argues that the Third Circuit's decisions in favor of brandname firms are "having a nationwide, uniform effect on the pharmaceutical industry and the delivery of generic drugs to the public." Par pointed out that the high concentration of brand and generic houses in New Jersey gives the Third Circuit the key position in determining the look-alike issue. Par identified the key issues for Supreme Court review as: "Whether this Court should resolve a conflict between the Third Circuit and this Court as to the rule of law governing the functionality of trade dress for prescription drugs?" "Whether the Third Circuit may continue to impose upon generic drug manufacturers a standard of contributory liability for unfair competition based upon 'reasonable anticipation,' where this Court held in Inwood v. Ives that such a standard is 'watered down and incorrect'?" "Whether a trade dress feature is non-functional as a matter of law solely because other companies can enter the market without copying, when copying provides legitimate benefits to patients and health care professionals?" "Whether a federal court may apply state law against unfair competition to prohibit the act of copying and selling functional product features?"

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