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Yes Offers domestic partner benefits for same-sex couples? No From the February 4, issue. Notes: N. Job growth, new jobs, and voluntary turnover are full-time only. Revenues are for or latest fiscal year. All data based on U. More Best. Hover over location for company address and employee data. Click for detailed map. Why Google's No. Sure the pay and perks are great. But employees also love the opportunity to try new things. See the video. Everybody loves Wegmans. See why this grocer is so popular among everyone from cashiers to managers to customers.

Take a tour. Select benefits you want and see instantly which Best Companies offer them. Find my top perks. What readers say It is a How it works. Bingham McCutchen. See the rest. The first group consisted of "Known Error Pairs," or "pairs of names that have appeared in published lists of confusing drug names.

DX Lambert Decl. Lambert's initial declaration, there are 1, "Known Error Pairs. DX Lambert Report at 4 ; see also id. DX Di Domizio Decl. Pharmacopeia list of branded drug name pairs. The second group was an artificially created "control" group of 1, "Non-Error Pairs," or drug name pairs that have not appeared in published lists of confusing drug names.

Lambert applied his methodology. In his initial report, however, Dr. Lambert identified ,, names pairs as the universe of actual possible branded drug name pairs in the real world.

DX Lambert Report at 4. DX Lambert Report at 7. Compare id. DX Bruce L. Lambert et al. Lambert admits that his model has a 6. Lambert, however, did not compute how well his method would work in the real world universe he identified as consisting of over ,, branded drug names.

As was made clear by the testimony of Professor George P. McCabe, [4] in that setting, Dr. This is because his method's "positive predictive value" the likelihood that a name pair predicted to be an error pair actually is an error pair is dictated by its "false positive rate" here 6.

Because there are so many more non-confusing name pairs ,,, than confusing ones 1, , when the model's conceded 6. Stated differently, out of the Lambert's model. When confronted with this analysis of his numbers and his work, Dr. Lambert repudiated and changed the numbers he had provided in his pre-litigation publications and initial declaration. Lambert's reply declaration. At the hearing, Dr. Lambert Tr. Lambert's inability to settle on a particular number or even range not only creates great uncertainty, but undermines the statistical foundation and reliability of his model.

Lambert's model was built using 1, non-randomly selected error pairs. The sensitivity false negative rate and specificity false positive rate measures he calculated are derived from the characteristics of these 1, "Known Error Pairs. Lambert's measures of specificity and sensitivity necessarily apply to the much larger universe of names.

That remains true whether that universe consists of seven to eight million name pairs or the million name pairs that Dr. Lambert initially adopted during his deposition, but later recanted. In other words, the reliability of Dr. Even giving this model every benefit of the doubt and assuming the sensitivity and specificity of Dr.

Lambert's model remains constant notwithstanding a huge increase in error pair assumptions it still has too high an error rate. For example, if one arbitrarily increases the number of "Known Error Pairs" to 10, instead of 1, , and dramatically limits the universe of drug name pairs by assuming there are only two million pairs of drug names instead of million , Dr.

McCabe Tr. Lambert also abandoned his earlier use of million as the number of total name pairs of drug trademarks. Rather, he suggests a possible replacement figure of 87 million, Lambert Tr. Because Dr. Lambert was readily willing to change the numbers that he used to support his model, and because his model's predictive value turns entirely on initial assumptions about how many pairs should be included in the model, Dr. Lambert's entire methodology is suspect.

In fact, it is no longer the same model that has been evaluated and peer-reviewed. Lambert's last declaration has not been published or peer-reviewed. Alternatively, Dr. On its face, this extrapolation compares apples to oranges and otherwise has no scientific basis.

Lambert's favor. By manipulating the universe of drug name pairs and the universe of error pairs, Dr. Lambert can theoretically achieve positive predictive values that are sufficient to make his model appear valid. Ultimately, however, Dr. Lambert's model lacks predictive value because Dr. Even more troubling, it appears to the Court that in order for Dr. Lambert's model to reach sufficiently high predictive values, for the following reasons it must make assumptions about the number of relevant pairs that are sufficiently unbelievable so as to lack any credibility.

The lack of real world reliability of Dr. Lambert's model was illustrated by the Court's question C1 to both parties' experts. The Court noted first that, if there were 8,, error pairs the number Dr. This minimum number, moreover, can be achieved only if one assumes that each one of the 4, drug names is confusingly similar to every other one of the other drug names in the group i.

Further, the total number of drug names, assuming 87 million pairs of names, is around 13, This means that, in order to render Dr. In the Court's estimation, absent evidence to the contrary, such an assumption about the realworld state of drug names is simply not credible.

Lambert responded to the issues raised by the Court by testifying that his model nonetheless identifies Travatan as falling into the one-third of all drug names that he believes to be similar to another drug name, conceding that the only way to tell which of these one-third of names is actually likely to cause errors is to analyze other factors for which his model does not account.

Not only does this expose the inability of Dr. Lambert's statistical model and methodology to assist traditional trademark infringement analysis, it vastly understates the problem. Four thousand is the bare minimum number of names mathematically required to produce 8,, unique pairs of names. For that number to be the actual number, each one of the 4, names would have to be confusingly similar to every one of the other 3, names. As Professor McCabe explained, it is extremely unlikely in the real world that there would be 4, names each confusingly similar to every one of the 3, other names in that group.

In reality, because almost all of the names will be confusingly similar to only one or at most several other names, it would take significantly more than 4, names to produce 8,, error pairs. This means that the "fix" Dr. Lambert proposes for his model is even more at odds with reality than the Court's conservative 4, name estimate suggests. Furthermore, the "Known Error Pairs" Dr.

Lambert has identified from "published lists" include not only pairs of names that have resulted in error, but also an undetermined number of pairs of names that various authors subjectively determined looked or sounded alike without actually having resulted in any errors. As a result, that a pair of names fits Professor Lambert's profile as a "Known Error Pair" is even less useful as a guide to the actual chance of error: What Dr. Lambert has constructed is a test that arguably might indicate the existence of some spelling similarity between two names, but his methodology is not a reliable predictor of actual medical substitution, let alone trademark confusion.

With respect to the application for a preliminary injunction on its claim that the Travatan mark dilutes the Xalatan mark, Pharmacia relies on the survey conducted by Walter McCullough. The survey did not test for trademark confusion. McCullough Tr. McCullough's survey contained a test cell and a control cell.

In the test cell, ophthalmologists were shown a box of Travatan and asked what other "products," if any, were brought to mind. In the control cell, ophthalmologists were shown a box of Lumigan, a competing drug marketed by Allergan, Inc.

DX McCullough Report at 6. If a test cell respondent answered Xalatan, they were asked four times to specify "why" Xalatan came to mind.

DX McCullough Report at 5. Any answers that indicated "name similarity" in the test cell including several that appeared to be referring to similarity of the generic names were coded as dilution responses. After netting out the dilution or "noise" results of the control cell, Mr.

At the hearing in this case, Mr. McCullough admitted to having miscoded at least one response. A 36 minus 1 "dilution" responses of in test cell McCullough contained numerous flaws and limitations that affected the reliability of his results.

First, Mr. McCullough did not survey a sample of the entire universe of consumers of glaucoma medications; he surveyed ophthalmologists only, despite that optometrists in all but three states nationwide prescribe glaucoma medications.

In its internal marketing studies, on the other hand, Pharmacia surveys optometrists, Def. Product Plan Second, having already limited the value of the survey by sampling only the universe of ophthalmologists, Mr.

McCullough further undercut the value of his survey by failing to take any steps to ensure that the sample drawn from this universe was even representative of the marketplace of ophthalmologists. He did nothing to screen for respondents' years of experience or the size of their practices, McCullough Tr. The hearing highlighted two specific mechanical problems with Mr.

McCullough's survey. McCullough did not apply the same standard in coding the test and control cells.

In the control cell, Mr. McCullough did not code the following as a dilution answer: "because it's in a similar class of product, it has similar endings. In the test cell, however, at least three substantively identical answers were coded as dilution. Compare Def. The name itself is reminiscent. Does the same thing. Both medications work almost the same. This inconsistent coding has the effect of exaggerating the net level of reported dilution. McCullough admitted that if he "changed the coding of these responses In fact, when the three test cell responses are recoded as nondilution answers so that they are consistent with Mr.

McCullough's coding of the nearly identical control cell response, the net dilution level falls to See Appendix A chart setting forth dilution shown by the McCullough Survey after accounting for flawed responses.

The second problem that undermines the reliability of Mr. These responses stand out from those obtained by the rest of the 55 interviewers nationwide in the following ways:. Boyd was one of only two interviewers nationwide to learn of the lawsuit during her work.

Boyd's other interviews included the unusually specific and curious phrase "puts me in mind of," a phrase that does not appear in any other questionnaire. McCullough has testified that it would be appropriate to "toss" interviews if they are suspicious. When combined with the recoding of the three miscoded test cell responses, the dilution level is reduced even further, to Pharmacia has defended Ms.

Boyd's work by contending that the Los Angeles market itself is anomalous. See, e. In light of this finding that the dilution level is 9. Alcon's objection to the questions in McCullough's survey asking what other "products" rather than what names or brands come to mind appear to be the kinds of questions appropriate in survey evidence to show actual dilution.

See Patrick M. A well-designed survey of ophthalmologists and optometrists conducted by Prof. Shari Seidman Diamond shows a net confusion rate of 1. Diamond also testified at the evidentiary hearing.

The Court found her to be a very credible witness. Professor Diamond is a professor of law and psychology at Northwestern University School of Law and a senior research fellow at the American Bar Foundation.

She is the author of the Reference Guide to Survey Research contained in the Federal Judicial Center's Reference Guide on Scientific Evidence , , as well as a similar chapter in West Publishing's four volume treatise, Modern Scientific Evidence , , and several other well-respected articles in the field. D DX Diamond Decl. DX Shari S. Professor Diamond chose to survey a nationwide population of ophthalmologists and optometrists because they are the market gatekeepers with respect to the prescription glaucoma medications at issue in this case.

Ophthalmologists and optometrists thus make the ultimate determination as to which medications pharmacists will dispense and end-users patientswill receive. Pharmacia's survey expert, Mr.

In order to ensure that the population surveyed was representative of glaucoma prescribers, Professor Diamond considered several lists of doctors from which to draw interviewees, including the membership list for the American Ophthalmology Association. Professor Diamond ultimately used a list assembled by the National Data Center because it is widely used for research purposes within the pharmaceutical industry and because it provided enough information about potential respondents' practice size and years of experience to allow for a stratified random sample.

Because doctors are a particularly busy population of potential respondents, id. The Diamond Survey tested for product source confusion.

It asked a series of questions based on a stimulus that was mailed to respondents in a sealed envelope. The stimulus was designed to focus the respondent's attention primarily on the name of the product. The questions that Professor Diamond selected for the survey "What company do you believe puts out the product whose advertisement you just saw?

Ex D DX sample questionnaire , are a standard type and format of questions used to gauge confusion in trademark cases. Pharmacia's survey expert, Walter McCullough, used virtually identical questions in a trademark confusion survey he designed in a prior infringement case. Professor Diamond selected the survey firm D. Howard took numerous measures to ensure that respondents did not view the stimulus prior to the interview.

First, during the screening interview, respondents were explicitly instructed not to open the survey materials until they were contacted for the interview. Corrigan Tr. Second, the materials were sent to respondents in a sealed envelope, with a sticker reminding respondents not to open the envelope before the interview. Finally, interviewers were specifically instructed to report any indication that respondents had previously opened the envelope to Karen Corrigan, who carefully supervised the interview process.

Corrigan credibly testified that she specifically received numerous reports from the interviewers that they could hear the respondents opening the envelopes. She also listened to tapes of the interviews as did the court , which confirmed that respondents did not view the stimulus prior to the interview. In order to record some of the lengthier responses, interviewers quickly recorded verbatim all of the statements of doctors in ways that ensured they did not miss anything.

Immediately following the interview, they transcribed those responses, when necessary, in a more legible fashion on a replacement or additional page. A review of all the questionnaires, as well as monitoring reports and tapes of the interviews, confirms that the responses were recorded accurately and completely. VV DX transcripts of taped interviews and accompanying recordings ; Def.

There are no paraphrases, gaps or any other indications that they do not represent what the respondents actually said. The raw data collected for this survey, in the form of the verbatim responses of doctors, was preserved and was made available to Pharmacia and the Court for review. Diamond Tr. After deposing Prof. Diamond, Pharmacia also deposed Ms. She testified at length regarding the steps she personally took to ensure that Prof. Diamond's admonition, to capture all comments made by the respondents to the substantive questions in the survey, was followed.

For example, Ms. Corrigan prepared a separate interviewer training manual for the Diamond Survey, which included the explicit instruction that interviewers record each doctor's comments verbatim. Corrigan personally trained the interviewers, during which time she emphasized to the interviewers that their "primary task" was to record every verbatim comment made by the doctors accurately and completely.

She also conducted mock interviews in which she herself acted as respondent. Finally, Ms. Corrigan carefully reviewed each questionnaire, as well as the monitoring reports and tapes. She concluded that the verbatim recording completed for this survey was "exceptionally accurate. Pharmacia has accused Professor Diamond and Ms. Corrigan of failing to control for the respondents' exposure to the stimuli and destroying evidence.

McCullough Reply Decl. The Court finds the accusation to be without merit. Walter McCullough, who leveled the charges on behalf of Pharmacia, testified that one of the reasons that the Diamond survey was entitled to no weight was the lack of stimuli control.

By that he meant that respondents in the Diamond survey had opened up the envelope they were sent that contained the test stimulus ahead of time. He had no evidence that happened but assumed it had "based on good research practice I think. The court finds from its listening of the tapes that the respondents did not view the stimulus prior to the interview. See Dx. VV; W. Similarly, Mr. McCullough has no evidence that any of the verbatim transcriptions are anything but the complete contemporaneous recordings of Professor Diamond's interviews.

To the contrary, the evidence on record clearly demonstrates that Professor Diamond and Ms. Corrigan made concerted efforts, above and beyond that found in many other surveys, to ensure that the verbatim recording of each response was absolutely complete and accurate.

McCullough admitting that his choice of words in criticizing Professor Diamond may have been "too strong. Indeed, the ophthalmologists and optometrists surveyed proved to be so verbose that without the precautions taken by Ms.

Corrigan and Professor Diamond, they would likely have missed parts of the interviewees' substantive responses. DX test cell response same ; id. I know about it. I use it in place of Xalatan. DX control cell response "[P]rostaglandins have been popular like with Travatan and Xalatan lately. Those are two prostaglandins. DX control cell response "Xalatan is made by Pharmacia Moreover, the Diamond Survey verbatims often make it clear that the doctors were speaking from memory.

Many doctors made statements to the interviewers that confirm they were opening the materials for the first time during the interview. In the one instance, where a doctor apparently was looking at a pre-printed prescription pad, Professor Diamond removed the verbatim from consideration.

Because physicians and pharmacists are a sophisticated population in their area of expertise the differences between the Xalatan and Travatan, their presentation and the products themselves are more significant than any partial similarities. There is no evidence in this record to conclude that either Xalatan or Travatan is more or less of a risk to pregnancy.

Pharmacia asks the court to find that there are potential risks to pregnant patients and pregnant caretakers who use or handle Travatan, believing it to be Xalatan, relying on Eisenberg Reply Decl. However, Pharmacia notes, that no such precaution is included on the potential risks to pregnant patients and pregnant caretakers who use or handle Travatan believing it to be Xalatan.

Eisenberg Reply Decl. In addition Pharmacia points to the package insert for Travatan which indicates significantly higher hyperemia red eye rates than Xalatan-a problem that can lead to noncompliance and potential detrimental effects. The court rejects Pharmacia's proposed finding because:. There is some small medical advantage of Travatan over Xalatan, particularly for African Americans. There is at least one known study published in a recognized ophthalmological journal evaluating the safety and IOP-lowering efficacy of two concentrations of travoprost 0.

Netland, et al. Ophthalmology , Eisenberg Reply Decl. The study reported a response i. Pharmacia has contended that when it first objected to Alcon's mark on February 7, , five weeks before Alcon received FDA approval for Travatan, Alcon should have changed the name of its product.

By that time, such a course was neither commercially feasible, nor reasonable given Pharmacia's lengthy period of inaction. The need to obtain both FDA and PTO approval as well as the approvals of health and trademark regulators worldwide for a new name would have resulted in the product being off-market for months while those approvals were being obtained.

The Court rejects the opinion of Pharmacia's expert, Mr. That opinion is contradicted by Mr. Di Domizio's own testimony and other facts. Di Domizio's testimony about the amount of time that the FDA takes to approve a new name for a pharmaceutical product was inconclusive at best.

Di Domizio gave inconsistent answers when asked how many actual pharmaceutical products he had handled where the FDA had approved a new name in the time frame he had suggested was possible for Travatan.

See id. Moreover, these incidents involved name pairs that were not only far more similar than Travatan and Xalatan, but also, as Mr. Di Domizio conceded, were identified as confusing by the FDA itself. Pharmacia's own experience with the launch of its still-unapproved glaucoma latanoprost-timolol combination product shows that the process of selecting a new name for a prescription drug product is time consuming, particularly when, as is true of both parties here, the name is intended to be used on a worldwide basis.

Nor would it have been a reasonable business alternative for Alcon to market Travatan under its generic name. Not only would Alcon incur substantial costs in educating the medical community about the name change, but none of that investment would ever translate into goodwill, because no company can claim exclusive rights in a generic name. As Pharmacia's own expert put it, it is not realistic to expect a company to "gamble[ ] away all future brand equity" by marketing its product under its generic name.

Di Domizio Reply Decl. Pharmacia's claims against Alcon are for unfair competition, including trademark infringement under the Lanham Act, 15 U. This Court has subject matter jurisdiction under 15 U. A substantial portion of the events giving rise to plaintiffs' claims and Alcon's defenses occurred in this District.

Venue is proper, therefore, in this District. Preliminary injunctive relief is an extraordinary and drastic remedy that should not be granted unless the party seeking the injunction can, upon a clear showing, demonstrate: 1 that there is a likelihood of eventual success on the merits; 2 that there is a probability of irreparable injury if relief is not granted; 3 that the non-moving party will not suffer irreparable harm if the preliminary injunction is issued; and 4 that preliminary injunctive relief is in the public interest.

Times Mirror Magazines, Inc. Checkpoint Sys. Check Point Software Tech. Bifold Co. Pharmacia has failed to meet its burden of proof. Victoria's Secret Stores, Inc.

Therefore the Court rejects Pharmacia's argument that the Court should apply the "possibility of confusion" standard in cases involving prescription drugs. It is this Court's conclusion that Morgenstern Chemical Co. There is no basis in the Lanham Act to draw any distinction in the substantive standard based on the nature of the products at issue.

Second, the Third Circuit cited favorably and relied upon numerous decisions, from this Circuit and elsewhere, applying the "likelihood of confusion" standard in trademark cases involving pharmaceutical and other medical products.

Barr Laboratories, Inc. Abbott Labs. Surgical Corp. Orris, Inc. Hoffman-La Roche, Inc. Rubber-Bound Brush Co. Its vitality on the issue of whether a likelihood of confusion standard or a possibility of confusion applies to trademarks of medical products would appear to be negligible. This is particularly so in light of the provision in N.

Pharmacia has not proved that there is a likelihood of confusion between Alcon's use of the Travatan mark and Pharmacia's use of the Xalatan mark.

Not all the factors need be considered if some are dispositive. Moreover, the weight to be given any particular factor is a fact sensitive determination left to the discretion of the trier of fact. Here, at least five factors the length of time of concurrent use without confusion, the sophistication of the market, the channels of trade, Alcon's good faith in adopting the mark and the dissimilarities in the dominant features of the marks dispositively weigh in Alcon's favor and indicate that confusion is not likely.

Both Travatan and Xalatan have coexisted for over nine months. Thousands of prescriptions for each have been written and filled. Thousands of "detailing" visits have been made during this time period by representatives of both companies.

Despite this, and despite the existence of voluntary and mandatory reporting systems that catalogue mix-ups between prescription products, there is no evidence in the record of any confusion.

Although evidence of actual confusion is not necessary to prove likelihood of confusion, Ford Motor Co. Summit Motor Products, Inc. Barre-National, F. Polaroid Corp. Armatron Int'l, Inc. Meredith Corp. Mayer Corp. The FDA's approval of the Travatan mark, which is based on its own pre-approval testing for confusing similarity, is entitled to some deference.

See Zeneca Inc. July 19, "as a recognized expert in evaluating data from clinical trials, the FDA's conclusion Marion Merrell Dow, Inc. Heckler, F. Congress vested that responsibility in the FDA. This ignores the fact that the final decision of the FDA's Division Director to approve Travatan was made with full knowledge that it would be marketed in one concentration.

The decision of the Division Director is entitled to the Court's deference. See Serono Labs. Shalala, F. The Court is aware that Pharmacia is not legally required to conduct a confusion survey. But under the circumstances of this case, Pharmacia's failure to conduct any confusion survey weighs against its request for a preliminary injunction. Such a failure, particularly when the trademark owner is financially able, justifies an inference "that the plaintiff believes the results of the survey will be unfavorable.

Destileria Serralles, Inc. Nabisco Brands, Inc. Lego Sys. Pharmacia's attempt to explain away its decision not to conduct a confusion survey economics further supports the appropriateness of such an inference, in light of the fact that from July forward, Pharmacia conducted numerous surveys concerning the Travatan mark, but never attempted to assess whether Travatan was likely to cause confusion with Xalatan.

The enormous sums Pharmacia invested in market research to prepare for the Travatan launch stand in stark contrast to its failure to conduct a confusion survey here, and fully warrant a negative inference regarding likelihood of confusion.

Finally, Professor Diamond's well-designed survey of ophthalmologists and optometrists, showing a net confusion rate of 1. Henri's Food Prods. Kraft, Inc. Astra Pharm. Victoria's Secret II, F. In trademark cases involving competing prescription drugs, the relevant consumers are physicians because patients do not choose their own prescription drugs. Smithkline Beckman Corp.

Pennex Prods. It is the physician, not the consumer, who selects the prescription. Zenith Labs. Doral Pharmamedics v. Pharmaceutical Generic Developers, Inc.

Thompson Med. Although Pharmacia argues about possible medication errors later in the prescription chain, even assuming that such errors occur, they do not establish trademark confusion. Medication errors include missed doses, drugs given to the wrong patient, prescriptions filled with wrong dosages and many other kinds of errors caused by any number of reasons, including poor handwriting, verbal miscommunications or other breakdowns in the dispensing chain.

Misreading or mishearing a prescription is not actionable under the Lanham Act, because trademark confusion is limited to consumer confusion in the context of a purchasing decision. NBA Properties, Inc. Moreover, there is no evidence that these purported instances of actual confusion could have any effect on consumer purchasing decisions" ; Lang v.

Living Publ'g Co. When a consumer knows the identity of the product or service he or she desires, but is mistakenly directed to another source for example, because of a mistake by directory assistance , the error is not evidence of trademark confusion. Mesabi Pub'g Co. Primedia, Inc.

Sed Non Olet Denarius, Ltd. Because the evidence of record demonstrates that doctors who play the role of the ultimate consumer in prescription drug cases are not confused, to the extent that pharmacists make mistakes, they are analogous to mistaken directory assistance operators.

More importantly, however, Pharmacia has no evidence of any misprescriptions between Xalatan and Travatan. Pharmacia's marketing executives specifically anticipated that Alcon would market Travatan by expressly comparing and contrasting it to Xalatan. The channels of trade particularly the myriad inperson detailing visits by both companies also reduce the likelihood of confusion.

Pfizer Inc. Barr Labs. McCrory's Corp. Perrigo Co. There is no factual support for that proposition. Even accepting Pharmacia's argument that Travatan was named by copying the ending of Xalatan which the Court rejects , such copying is legally irrelevant for at least three reasons.

First, because the marks as a whole are not identical, no presumption of intentional copying arises and Pharmacia retains the burden of establishing likelihood of confusion. Barnes Group Inc. Connell L. Sanmark-Stardust, Inc. Second, the reasoned judgment by counsel that Travatan was available precludes a finding of bad faith. Third, intentional copying is irrelevant when other factors indicate that there is not a likelihood of confusion, American Home Prods.

Versa Prods. There is no evidence that Alcon intended doctors to be confused as to the source or nature of Travatan. Because there is no evidence that Alcon intended to deceive consumers as to the source of the Travatan product or even that it intentionally copied the "ATAN" portion of the Xalatan mark , Alcon's "adoption of a trademark with actual knowledge" of Xalatan may be entirely "consistent with good faith.

Schira's] professional advice had been wrong, it does not follow that [Alcon's] reliance on that advice would have constituted bad faith. Toyota Motor Sales, U. Find Magazine, F. Columbia Pictures Television Inc. Pharmacia bases its infringement and dilution claims on the shared "ATAN" suffixes of the two names, ignoring the many dissimilarities in the spelling, pronunciation and presentation of the marks.

However, "marks should be viewed in their entirety," rather than dissected. Dissection of marks is particularly inappropriate in the pharmaceutical context because suffix similarity is not uncommon and, for that very reason, not likely to confuse highly trained doctors. See Upjohn Co. Schwartz, F. The only similarity is in the last syllable, and that is not uncommon in the names given drug compounds.

Any claim by Pharmacia to exclusive rights to the suffix "ATAN" is weak because of the number of other pharmaceutical products that use the suffix e. AccuStaff, Inc. No particular number of other products or users are necessary to show that concurrent use weakens claims to exclusivity.

Castle Oil Corp. Castle Energy Corp. The relevant market regarding third party use is not limited to ophthalmic solutions but is the overall pharmaceutical market. Mars, Inc. The prominent display of the Pharmacia and Alcon house marks, along with the distinctive packaging used by each company, further weigh against likely confusion. Warner-Lambert Co. Cable News Network, Inc. TGC Stores, Inc. Youngs Drug Prods.

Barnes, F. Because Pharmacia has no marketplace evidence of likely or actual confusion, it emphasizes evidence in the form of expert opinion testimony. This evidence is insufficient to overcome the marketplace evidence that confusion is unlikely. Apart from consumer surveys, "[L]ay or even expert opinion about the likelihood of confusion is inadmissible or entitled to little weight.

The opinions of Dr. Eisenberg and Mr. Di Domizio with regard to the likelihood of confusion between Travatan and Xalatan are based primarily on a subjective evaluation of the marks in light of their experience in the pharmaceutical industry Di Domizio or as an ophthalmologist Eisenberg. There are no reported trademark cases in which a court has based its findings of a likelihood of confusion or dilution on the types of "opinions" on which Pharmacia relies.

The bases for these opinions stand in stark contrast to the survey conducted by Professor Shari S. Diamond, J. See John H. Harland Co. Clarke Checks, Inc. Lambert's opinion on the likelihood of confusion similarly is entitled to little weight. His statistical model cannot predict with meaningful reliability in the real world whether Xalatan and Travatan are accurately characterized as an "Error Pair," or if instead they represent a "false positive" that is, a pair of drug names improperly classified by Dr.

Lambert as confusingly similar. Because in the real world there are many, many more non-confusing drug name pairs than confusingly similar ones, it follows from the application of basic statistical principles that the Travatan-Xalatan pair is likely to be a false positive. In any event, Dr. Lambert was unable to opine with any degree of certainty what numbers should be used to determine his model's reliability, much less whether Travatan and Xalatan ever will be confused in the real world.

Because the Court must assess confusion based on a well-defined set of factors intended to measure what is likely to happen in the real world, Checkpoint Sys. Lambert's model lacks significant probative value for the purposes for which it is offered. Daubert v. Merrell Dow Pharms. Carmichael, U. Joiner, U. The model is entitled to very little weight in a Lanham Act case and cannot serve as the basis for a finding of likely confusion, especially in light of contrary marketplace evidence and the FDA's regulatory determination.

None of the expert opinions remaining after the Court's November 28 in limine ruling, therefore, is sufficiently compelling to overcome the marketplace evidence demonstrating that confusion is not likely. Pharmacia also has not shown a likelihood of success on the merits of its trademark dilution claims. Times Mirror, F.

The Court recognizes that Pharmacia's claim for dilution is separate and distinct from its claim for confusion. Lund Trading v. Kohler Co. It is "up to the judiciary to apply Pharmacia has failed to meet its burden on its dilution claim for several reasons. First, a dilution plaintiff must be threatened by a very similar, if not identical, mark.

Courts have repeatedly rejected dilution claims unless the marks are essentially the same, which they are not here. American Cyanamid Co. Nutraceutical Corp. Stouffer Corp. Lund, F. Windows Corp. Indeed, differences such as the use of house marks "alone" can defeat dilution claims. Beckman Instruments, Inc.

Jim Henson Prods. In the pharmaceutical context, because prescription drug packaging is required to display generic names, the likelihood of dilution is further diminished when, as is the case here, those generic names differ. Pfizer, F. Pharmacia's dilution claim suffers from two other obvious infirmities.

Second, in the pharmaceutical field, professionals have been trained to distinguish generic and proprietary names within a class of drugs. This means that the sophistication and training of these professionals must be taken into account.

Moreover, courts should be wary of applying a dilution remedy when it is invoked in trademark cases between competing products, especially when there is no accompanying evidence of a likelihood of confusion.

Express Corp. Espresso, Inc. The Court reaches this conclusion notwithstanding the McCullough survey. In fact, if anything, the McCullough survey supports the court's conclusion that Pharmacia has not met its burden of showing a likelihood of dilution. In claims for likelihood of confusion, case law teaches that a finding of infringement requires a 15 to 20 percent range of confusion. Gerald L. See also Xuan-Thao N. A dilution claim may require a slightly higher number "because the nature of the underlying cause of action is different.

It is harder to establish that consumers believe that a defendant's product is put out by the plaintiff. That is harder to establish than it is to establish dilution which simply requires a showing that defendant's product calls to mind the plaintiff's brand name. See also Gerald L. Even fully crediting Mr.

McCullough's survey, it is insufficient on its face to support a preliminary injunction for trademark dilution. Haaf, 40 U. Other courts have demanded a much higher percentage. Kellogg Co. Exxon Mobil Corp. Jerre B. Rhone-Poulenc Rorer Pharms. Transfer Print America, Inc. Once it became evident that two of the interviewers learned of the lawsuit, precautions should have been taken to ensure that any further responses they elicited were scrutinized for any anomalies and, if any appeared, were excluded.

Paco Sport, Ltd. Paco Rabanne Parfums, 86 F. Interviewers occasionally fabricate answers instead of completing interviews, and knowledge of the desired responses makes cheating easier. United States, F. Because Ms. Boyd's interviews as well as the two other Los Angeles interviews sharply contrast with those obtained nationwide, they should not be counted. When taken in the context of the previous findings of fact and conclusions of law, the McCullough survey with a dilution level of 9.

The McCullough survey, accordingly, is inadequate to meet Pharmacia's burden of proving likely success on its dilution claims. The court rejects Pharmacia's contention that as Alcon continues its marketing efforts to position Travatan to take market share from Xalatan, the percentage of ophthalmologists who think Xalatan when they see Travatan will increase with time.

Pharamacia essentially argues that dilution is a slowly progressing tort, see Times Mirror, F. Ing, h. Porsche AG, 8 F. PF Brands, Inc. Here, Pharmacia's own dilution survey indicates as modified by the Court a 9. There is no evidence that the dilution rate will increase over time. Moreover, the Court has already concluded that there is no likelihood of dilution. Plaintiff contends that it has demonstrated irreparable harm because it has made a strong showing of a likelihood of confusion.

Jews For Jesus v. Brodsky, F. Again, Pharmacia argues that irreparable harm is generally presumed in a case of trademark dilution. Natural Answers, Inc. This line of law is unavailing to Plaintiff, however, because Pharmacia has not made a showing of likelihood of confusion, let alone a strong one, and the court has concluded that Pharmacia has not met its burden of proving likely success on its dilution claims.

Any claim to irreparable injury is undercut by its lengthy and inexcusable delay in bringing this action for preliminary injunctive relief.

This delay is a separate but equally dispositive basis, apart from the weakness of Pharmacia's case on the merits, for denying Pharmacia's motion for a preliminary injunction. Actual or constructive notice is the governing standard for measuring delay in moving for preliminary injunctive relief. Thus, courts consider both a trademark plaintiff's actual knowledge of infringement and its constructive knowledge. Commerce Ins.

Agency, Inc. Farah Mfg. Mattel, Inc. A trademark plaintiff has a "duty to police" for allegedly infringing uses, Commerce Nat'l, F. See also Reedco, F. The "should have known" standard is satisfied by contrasting the full scope of a party's monitoring practices and the way it addressed marks it truly regarded as violating its rights, with its inactivity with respect to the mark it belatedly seeks to enjoin.

Warner Lambert, F. Citytrust, F. American Mgmt. There is ample evidence in the record that during the relevant time period, Pharmacia monitored for infringing uses of its trademarks, and filed oppositions before the PTO to marks that it felt infringed its intellectual property rights.

Pharmacia has had constructive or actual notice of Alcon's intent to use the Travatan mark for its glaucoma product since at least May , when the mark was published for opposition in the Official Gazette. Indeed, the very purpose of publication for opposition in the Official Gazette is to allow "[a]ny person who believes that he would be damaged by the registration of a mark" to "file an opposition in the Patent and Trademark Office By the summer and fall of , Pharmacia had to have known of the Travatan name, even if Pharmacia's delay is measured only from April , when it concedes it knew of the Travatan mark.

Such a delay one full year knocks the bottom out of any claim of immediate and irreparable harm. New Dana Perfumes v. The Disney Store, Inc. Outbound Prods. Here, however, it is not simply the passage of time that refutes Pharmacia's claims of irreparable harm. In this case, Pharmacia not only knew about Alcon's Travatan mark, but also exhaustively market-tested and analyzed that mark for at least eight months before seeking relief.

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Why Novartis is spinning off Alcon and sticking to Sandoz

May 14, аи Pharmacia Corp. v. Alcon Laboratories, Inc., F. Supp. 2d (D.N.J. ) case opinion from the U.S. District Court for the District of New Jersey Liquid Glass Enterprises, Inc. v. Dr. Ing, h.c.F. Porsche AG, 8 F. Supp. 2d , (D.N.J. ) PHARMACIA'S CLAIMS UNDER NEW JERSEY LAW. Pharmacia is not entitled to . Alcon Official Site: Developing Innovative Eye Care Treatments | Your browser does not support the video tag. We aspire to lead the world in innovating life-changing vision and eye care products because when people see brilliantly, they live brilliantly Corporate Responsibility Report Learn more Sight Innovation. Government Affaris, Legal Counsel & Advocacy. Our main area of operations is the Central Pacific Jaco, Puntarenas Province, Costa Rica.