MISSOULA, Mont. — OSRX, Inc., based in Missoula, Montana, recently conveyed its profound dissatisfaction with a jury verdict that found it and its associate company, Ocular Science, Inc., liable for willful trademark infringement and unfair competition, resulting in a substantial penalty of $34.9 million in damages. The lawsuit, initiated by ImprimisRx, a subsidiary of Harrow Health, Inc., was adjudicated in the Southern District of California.
Throughout the proceedings, OSRX defended its use of certain abbreviations commonly utilized in ophthalmology, such as “Pred,” “Moxi,” “Dex,” and “Brom,” which refer to prednisolone, moxifloxacin, dexamethasone, and bromfenac, respectively. OSRX contended that these terms are generic and have been widely used in the industry to describe the ingredients in compounded medications, disputing ImprimisRx’s claims to exclusive trademark rights over them.
The crux of OSRX’s defense was a survey illustrating that approximately 70% of eye care professionals acknowledged these terms as generic. This point was emphasized by the company’s argument that the trademarks were not distinctive or worthy of protection under U.S. trademark law, a viewpoint the company has held for nearly a decade.
Dylan Liddiard from the law firm Wilson Sonsini Goodrich & Rosati, representing OSRX, criticized the verdict, pointing out that significant legal and equitable issues like laches, unclean hands, fraud on the U.S. Patent and Trademark Office (USPTO), and the sufficiency of evidence regarding damages have yet to be resolved. These matters are scheduled for review in December.
Harrow Health, via its subsidiary ImprimisRx, alleged that OSRX’s use of these abbreviations not only infringed its trademarks but also misled consumers, thereby damaging its business. They argued that OSRX’s actions necessitated remuneration equivalent to 100% of its sales garnered through the purported confusion, a claim OSRX fervently denies.
At the heart of this legal battle is a broader industry issue involving the use of generic medical terminology in pharmaceutical branding and the dynamics within the compounded ophthalmic space. This sector is increasingly competitive, intersecting traditional pharma companies and specialized compounding facilities alike.
Anthony Sampietro, Founder and CEO of OSRX, depicts this lawsuit as a manifestation of larger pharmaceutical companies employing aggressive tactics to suppress smaller competitors, thereby monopolizing specific market segments and inflating medication costs. He emphatically stated that his company was founded on the principle of prioritizing patients over profits and pledged to continue advocating for fair competition and consumer choice in the industry.
In its ongoing efforts to challenge the verdict and vindicate its practices, OSRX remains committed to advancing its contributions to ophthalmic care, emphasizing the need for accessible, high-quality medical solutions. The company, catering to over 5,500 prescribers across the U.S., continues to champion innovation in the field, despite the legal uncertainties.
This unfolding legal saga not only highlights the complexities of trademark law in the pharmaceutical industry but also sets a significant precedent for how generic medical terms are treated in legal contexts, potentially influencing future cases and industry practices.
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