APRESAZIDE COLOR, SIZE & SHAPE CASE: BOLAR SEEKING TO EXPEDITE APPEAL

Executive Summary

APRESAZIDE COLOR, SIZE & SHAPE CASE: BOLAR SEEKING TO EXPEDITE APPEAL of a NJ federal court's permanent injunction prohibiting it from employing the same trade dress used by Ciga-Geigy for the hydralazine hydrochlorothiazide combo. On March 5, Bolar asked the Third Circuit to affirm NJ Federal Judge Sarokin's permanent order so that the generic firm can seek to return the case to the Supreme Court. Bolar's suggestion to the Third Circuit followed the Supreme Court's denial, on the same day, of the firm's petition for certiorari relating to a preliminary injunction issued by Sarokin in the fall of 1982. While the appeal of the preliminary injunction was moving through the Third Circuit to the Supreme Court, Sarokin converted the original order to a permanent injunction. Bolar restarted the appeals process on the permanent injunction, and now wants the Third Circuit to reaffirm its decision in the belief that the Supreme Court will be more likely to accept the case under a permanent injunction. The high court rarely accepts review of preliminary injunction. The case is significant because it is being considered under a New Jersey state law and section 43(a) of the Federal Lanham Act, which addresses unfair competition practices. An earlier "look-alike" case which reached the Supreme Court, the Ives Cyclospasmol suit, was decided under section 33 of the Lanham Act which deals with the narrower issue of trademark infringement. In that case, the Supreme Court ruled that Inwood Labs was not responsible for "passing off" its products for Ives' drug. The current case could establish whether generic use of brand name trade dress per se is unfair.