Customer Confusion Found Likely in Cholesterol Medicine

Holding that confusion was likely between the trademarks ADVICOR and ALTOCOR, both of which were used with prescription cholesterol-altering medications, the U.S. Court of Appeals for the Third Circuit reversed the prior decision of the district court and required the district court to enter an expedited order enjoining the marketing and sale of the defendant’s cholesterol-lowering medicine. Kos Pharmaceuticals, Inc. v. Andrx Corporation; Andrx Laboratories, Inc., Case No. 03-3977 (May 24, 2004) (Oberdorfer J.).

Kos Pharmaceuticals began marketing a medication to improve cholesterol levels under the trademark ADVICOR in 2001. Soon thereafter, Kos learned of Andrx’s plans to market a similar medicine under the ALTOCOR name. Kos attempted to dissuade or prevent Andrx’s use of the ALTOCOR mark several times before Andrx actually started marketing ALTOCOR in July 2002. By August 2003, when Kos filed a complaint against Andrx, both companies had already spent tens of millions of dollars