In a recent case involving the validity of trade dress in drug configurations, the U.S. Court of Appeals for the Third Circuit held color, size and shape of certain medication was functional and that the manufacturer had, therefore, failed to demonstrate a likelihood of success on the merits of its trade dress claim. Shire U.S., Inc. v. Barr Laboratories, Inc., 329 F.3d 348, 2003 U.S. App. LEXIS 10363 (3rd Cir. 2003).
Shire has offered its ADDERALL brand ADHD medication in tablet form since 1996. The color (blue or orange/peach), size and shape (oval or round) of the tablets vary with dosage strengths. The tablets are also scored and stamped with the mark "AD" on one side and the dosage on the other. Barr, a competing pharmaceutical manufacturer, began offering a generic equivalent. Barr's tablets were offered in similar colors (blue or peach/light orange), sizes and shapes (oval) as Shire's. Shire brought suit for infringement of its unregistered trade dress, arguing that Barr's use
