Pharmaceutical firms must take their generic medicine on trademark use

The principle signs that can be used on pharmaceuticals are the generic name of the pharmaceutical, the trade name of the pharmaceutical and a trademark. The generic names of pharmaceuticals – for example, paracetamol, the generic name of a cold relief medicine – can be found in the Pharmacopoeia of the People’s Republic of China, state pharmaceutical standards, pharmaceutical standards issued by the Ministry of Health and pharmaceutical standards issued by the provinces, autonomous regions and centrally governed municipalities. As the generic name of a pharmaceutical does not satisfy the provision of article 11 of the Trademark Law on distinctiveness and ease of identification, it cannot be registered and no one may secure the exclusive right to use the same.

The term “trade name of a pharmaceutical” is the name created by a pharmaceutical enterprise to distinguish different sources of a pharmaceutical or to distinguish different pharmaceuticals of the same enterprise, e.g. the trade name Tylenol is the name used by Johnson & Johnson for its paracetamol tablets. The 2006 Notice of the State Food and Drug Administration on Further Standardising the Administration of Pharmaceutical Names specifies that only Chinese characters may be used in the trade names of pharmaceuticals and that such names must comply with the Principles for the Creation of Trade Names of Pharmaceuticals.

As for trademarks, although the Law on the Administration of Pharmaceuticals, amended in 2001, abolished mandatory registration of pharmaceutical trademarks, by 2006 the Regulations for the Administration of the Instructions for the Use of, and the Labels of, Pharmaceuticals expressly provide that “the use in the instructions for the use of, and labels on, pharmaceuticals of unregistered trademarks or other pharmaceutical names not approved by the State Food and Drug Administration is prohibited”. In other words, a pharmaceutical company can only use a trademark when its registration has been approved on a pharmaceutical.

Eric Su and Daisy Yao are both partners at HFG in Shanghai