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The Intellectual Property StrategistFeaturesIntellectual PropertyLitigationPatent Licensing and TransactionsRegulation

From the PTO to the FDA: What to Consider When Branding Clinical Trials

By Brandon Leahy Susanna Lichter and Eva Yin
February 01, 2021

The legal implications of branding generally arise for companies during the process of selecting a company name and any initial product or service names. For drug development companies, however, careful consideration should also be paid to the implications of branding a clinical trial.

Our experience and observations suggest that branding clinical trials has become more prevalent. While it may seem unnecessary to brand a clinical trial because of its limited duration and pre-market nature, the long road to market for therapeutics makes building a recognizable house brand or product name challenging for companies before regulatory approval. As a result, companies are turning to the clinical trial process as an early-phase opportunity to establish a brand identity, raise public awareness of the company's mission, and create market familiarity with the company's technology and discovery objectives.

Each month in the U.S. around 800 clinical trials are commenced and around 80 trademark applications are filed that use the phrase "clinical trial(s)" in the specification of goods or services. These applications typically cover Class 9 (applications or software for clinical trials), Class 35 (recruiting for clinical trials), or Class 42 (medical research). The number of trademark applications related to clinical trials has steadily increased from 2018-2020, with filing volume spiking significantly from May 2020-July 2020. The spike in applications was followed by a corresponding increase in clinical trials from August 2020-November 2020, suggesting that companies are applying for trademarks relating to clinical trial activity several months before trials actually begin.

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