Varemærkets indflydelse på markedsføring af biosimilars: En juridisk og økonomisk analyse af varemærkerettens betydning for innovation

Sanne Charlotte Martini

Student thesis: Master thesis


In 2008 the Commission launched a sector inquiry of the pharmaceutical sector. The background for this inquiry was some findings of originator pharmaceutical companies trying to hamper or delay the marketing of innovative improved medicines and of generics.. The inquiry was launched in order to uncover the causes of the seemingly very low competition level in the industry. Generic medicines makes a major contribution to lowering the expensives in the health sector and to make medicines affordable. The goal for the Commission is to achieve a price level that is payable for the consumers, and a level that lowers the costs of the society and at the same time promotes incentives for the industry to be innovative. The inquiry focuses on patents, competition, marketing approvals and reimbursement regulation, But the role of trademarks is not mentioned. Biopharmaceuticals represents the fastest growing segment in the pharmaceutical industry. Biosimilars are the equivalent to generics when it comes to biopharmacuticals, except that biosimilars are not exact copies , but they are similar. In order to market these products it is important to be able to refer to the referenceproduct, Doing this could mean using the trademark of the originator company. This thesis seeks to analyze to which extent the European trademark laws supports the goal of the Commision. The main focus will be on the effects on innovation. This is done via analysis of relevant case law and Danish and European legislation. The thesis also seeks to analyze the relation of a strong trademark and innovation in the pharmaceutical industry. This analysis is based on economic theories of the functions of a trademark. Theories of Klerman. Lemley, Landes and Posner and Jerome- and Lee Davis are used in this section. The focus will be on the Danish market and on the Danish regulation. The thesis concludes that the present case-law and legislation does not support innovation and a lower price level in the market for pharmaceuticals.

EducationsMSc in Commercial Law, (Graduate Programme) Final Thesis
Publication date2014
Number of pages84