Pharmacia Corp. v. Alcon Laboratories, Inc.

201 F. Supp. 2d 335 (2002)

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Pharmacia Corp. v. Alcon Laboratories, Inc.

United States District Court for the District of New Jersey
201 F. Supp. 2d 335 (2002)

Facts

Pharmacia Corp. (plaintiff) filed a suit alleging trademark infringement against Alcon Laboratories, Inc. (Alcon) (defendant). Pharmacia sought a preliminary injunction to stop Alcon from violating Pharmacia’s Xalatan trademark through Alcon’s use of its Travatan trademark. Travatan was a treatment for glaucoma. Alcon presented the court with the results of a well-designed survey that demonstrated a net confusion rate of only 1.5 percent. The survey was designed by Professor Shari Seidman Diamond, who surveyed ophthalmologists and optometrists across America. These doctors were chosen because they determined which prescription glaucoma medicine pharmacists provided and which medicines patients were given. Professor Diamond selected a reputable survey firm that specialized in medical surveys. Interviews were conducted, responses were documented accurately, and the raw data was provided for Pharmacia’s and the district court’s reviews. Professor Diamond gave credible testimony at an evidentiary hearing. By contrast, Pharmacia did not provide evidence of a survey conducted to show actual or likely confusion between Xalatan and Travatan. Pharmacia asserted economic reasons for not providing a survey. However, beginning in July 2000, Pharmacia conducted various surveys related to Travatan, and none of them assessed confusion. Additionally, the results of Pharmacia’s surveys demonstrated that 95 percent of ophthalmologists recognized that Xalatan and Travatan were different medications. Pharmacia had spent vast sums in market research in preparing for Travatan’s entry into the market, which stood in marked contrast to its decision not to provide the court with evidence of a confusion survey. Although Pharmacia was not obligated by law to provide a survey assessing confusion, the district court inferred from Pharmacia’s decision not to provide a survey that Pharmacia believed such a survey would not show confusion. In the absence of a confusion survey, Pharmacia sought to rely on expert-opinion testimony regarding the likelihood of confusion, which was not admissible.

Rule of Law

Issue

Holding and Reasoning (Bassler, J.)

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