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Balancing Branding and Legal Risk

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Darshan

Hey everyone, welcome to the DarshanTalks podcast. I'm your host Darshan Kulkarni. As you know it's my mission to help patients trust the products they depend on. As you know by now I'm an attorney and a pharmacist and advise companies with FDA regulated products. So if you ever think about drugs or wonder about medical devices, and consider cannabis, or obsessive pharmacy, this is the podcast for you. I do these discussions because they're a lot of fun. I find myself learning something new each time like I'm gonna learn today. If you like what you hear, please leave a comment. Please subscribe. It helps me know that you're listening and keep these conversations going. You can always reach me on DarshanTalks on Twitter, or just go to our website DarshanTalks, calm. today's podcast, this podcast is going to be really interesting. We've actually had this guest over before. And she was fascinating and people were asking about her and be we're excited to bring her back. So if you care about branding, you care about positioning you care about how all of that fits into legal, you're probably going to care about today's discussion. Our guest today is the partner at Duane Morris in Philadelphia. She leads the fashion retail consumer brands and and the Industry Focus themes. Our guest today Christine Campbell, how are you Christy?

Christiane

I'm great, how are you know,

Darshan

I spoke really fast, so I'm a little out of breath.

Christiane

I usually start off by saying a little bit of homework here if I speed up because I geek out on these brand new topics. If I speak too quickly, go ahead and stop me slow me down. I'm trying to get better. After 16 months doing all audio and some video I should be getting better. But I still talk very quickly.

Darshan

Don't we all? So let's start with the basics. Christy, what's been going on nowadays? And what have you been working on the last several weeks?

Christiane

Okay, um, as you know, I'm a trademark attorney. So I say intellectual property but really my focus is trademarks. There's a lot of different aspects of trademarks and managing brand portfolios that I deal with on a day to day basis. And I would say one of the most you know, as we discussed last time, cannabis is a big, big thing right now in terms of branding because a lot of companies are looking at becoming the next CPG consumer packaged goods and branding but really you know, there are a lot of trends going on not just in the fashion industry not just in cannabis but consumer brands generally ESG corporate social responsibility and those types of themes have become more and more important to businesses become really important to brands and the value of brands so where I fit in to kind of the brand evaluation piece and relative to CSR and ESG is when we're betting brands that used to be kind of you know traditionally do a trademark clearance and availability search you look at US federal trademark database you look at some state trademark databases maybe some common law resources. You see what's out there and you say okay, well there's this is how much market space you have or you have none because there's other parties there's conflicts yada yada. Now we're looking beyond that we're looking at what how is your brand going to communicate what you do? How is it going to resonate? Is it going to resonate and ESG and CSR are huge components of that and there are it's a there's a almost a need now for a holistic approach to branding. You can't just look at what other parties have and where your you know, your your roadblocks and your wall wall space might be you've got to look at how a brand is gonna communicate what is it going to say there are some brands out there that do such a phenomenal job of communicating a message of corporate social responsibility and and environmental social governance and they're really thinking about what consumers care about. There's a big theme now with brands giving back you know, the one for one type thing, um, you know, promoting clean water sustainability is huge, particularly in fashion. So as we you know, talk to clients about the brands that they've either selected or looking to select or some ideas they have. We're doing kind of a wraparound holistic approach not just looking at the legality but also what does your brand saying what does it say about you and it's got to be honest to you can't say well, we're you know, 00 carbon emissions and our footprints going to be net zero by this year if that's not true, you've got to be able to back all that up but saying things like that, you know, really demonstrating your your environmental and your social responsibility can go a long way for a brand.

Darshan

So So let's talk a little bit about that. So first of all, let's let's draw the distinction is involved. Never social governments governance the same as corporate social responsibility?

Christiane

Not really. I mean, there's some different aspects of each there are two, there are definitely two buzz acronyms right now. I would say ESG is a little bit more formalized. I mean, I work frequently with one of our real estate lawyers, just because of opportunity zones and things like that on environmental, social governance, but the CSR? I mean, different people think of it different ways. CSR, I kind of think of as what is the company doing socially with current events, they think of things like Black Lives Matter, I think of, you know, is sustainability, which does play into, you know, the environmental aspects. But yeah, you know, there's, there's a lot of different different buzz words that go around. Um, another reason that a holistic approach and a holistic view is is really important to the brand. And walking the walk obviously, is important as well.

Darshan

So usually, when I hear things like holistic approach, I tend to think of consultants doing it, what is the role of a lawyer coming in at that holistic approach level? And what are we as lawyers doing to address those esgs? And csgs? if you will? that's a

Christiane

that's a really good question. And you're right, probably, you know, I mentioned traditionally, trademark searches and brand clearance searches and brand portfolio building was just looking at the road clearance and availability of a particular brand and what risks are there? Um, yeah, maybe there are consultants that do that, but I would not, I don't think be doing my job. If I reported to a client and said, Hey, this mark is available. Um, but you know, if I didn't say, you're gonna piss off a lot of people if you adopt it, because Forgive me for the language, but you're, you're going to this brand might be available, but there's a reason or it's not really marketable, it's not going to help you. And if you're looking at a strategic exit, if a buyer, if you're looking for funding, you're not investable, if you've picked a brand that irritates people, rubs people the wrong way.

Darshan

So So let's talk a little bit about that. One of the companies that that recently came out, I'm trying to remember which one it was. They basically came out and said, we take no political steps. We basically what do you remember which company I'm thinking of?

Christiane

There are a couple that have done it.

Darshan

What were the one that really stuck out at me is it was it may have been a California company, but it could have been Texas while I know. But essentially, they came out pretty well known company. And they said we don't take a political stance, the impact of that. And they said that whoever thinks that they need to take a political stance for work needs. You don't have to work here, and a whole bunch of senior leadership left, and a whole bunch of leadership left. What is your take on that? Is your take that now as a company, you almost have to politically take a stance, for better or for worse, and does that are you by Are you therefore by definition, potentially alienating 50% of your audience?

Christiane

or less? That's because there's so much to unpack there. Um, authenticity is something and maybe it's generational, but right now, authenticity is really key to brands as well. Um, so again, you know, I said, walk the walk, I mean it like if you say that you're sustainable, you better be sustainable. And there are there's too much transparency and a good way, you're going to get called out, there's receipts, you can't say, we're going to have this carbon footprint by this year and not be able to back that up. So authenticity is really important. But you have to balance that with saying, okay, we're authentic. And this is where we stand politically. And this is where we are on gun control, or this is where we are in Black Lives Matter. This is where we are on climate or global climate change, global warming. If you take your position on those things, you've got to own it. And yes, you are probably going to alienate some people. But if you say we don't take a political stance, there are there's a new breed of consumer now that kind of reads through that and says, well, then are you just a politician that's trying to appeal to everybody, like how can you possibly talk out of both sides of your mouth? So people are asking the questions now they're asking the hard questions. They're looking at the facts. They want know what businesses are doing from a sustainability standpoint. You know, they want to know that things are that fabrics. Just say for example, because I deal in fashion quite a bit. fabrics are sourced responsibly. That doesn't mean just environmental impact it means are these being manufactured in a sweatshop in a third world country. All of these things matter to consumers and the impact on a brand if some gets out where either the brand was dishonest about their sole thing. And their, you know, their footprint. Or, you know, they just don't say anything about it. But it gets uncovered that they are kind of sourced irresponsibly, if you want to say that the impact on a brand can be devastating, and I would argue probably cannot be resurrected. I mean, a brand that goes under for having sweatshop activity or polluting the oceans is going to have a really hard time coming back from that. So that is a very long winded conversation, a way of saying, authenticity is really important. And I know there's a number of brands that have done it. liva I believe it was Levi's did it. Patagonia, where they took a stance and they said if we are alienating some of our consumers, that's okay. Because we're speaking to the ones that are aligned with our views. I'm not putting words in their mouths. I'm just saying as a general theme. Patagonia was okay saying, you know, for private equity, I think it was no vest for you. They were pulling us depending on what those funds were investing in. I think Levi's it was Levi's. It took a stance on gun control. But they're all these different social issues that that have brands do take a stance on them, and they own it. Um, at the same time, they might be alienating certain consumers, they're really building a following and loyalty among those that are aligned with their views.

Darshan

So I guess the question then becomes, what are you talking about those consumers who are aligned with your views, I tend to think of consumers in and sort of, are not just consumers to anyone, you'll you'll get the people who are vehemently opposed, you'll get the people who are on both sides, and then you'll get sort of the silent majority. So So I guess my question for you is, when you talk about the people who are who voice or agree with you, are we talking about a vocal minority? Are we talking to the majority? I guess, and the reason I asked that question is that has a direct impact on your brand because if you're if you've spoken to the vocal minority, you may alienating the majority I'd really good example of that was the Gillette the man campaign really blew up in their face

Christiane

so many examples. There's so many examples. Yeah, the peloton. peloton. Yeah, yeah,

Darshan

peloton, that was another one. And then there's a whole argument in movies where they say it's, there's a whole thing on go won't go broke? So yeah. So. So I guess my question is, if you're advising companies, how do you help them? Obviously, you want them to grow? You want them to be authentic, Be true to themselves? Yeah. But at the same time, you don't want them pandering to an audience who may be at the very best as a fringe audience. So how do you guide them?

Christiane

It's a hard line to walk on really hard line to walk. And usually the way that we approach it is talk to a company, you know, at inception, or as early as we get involved in their branding process. Where do you want to be? And where do you want to go? Where you cast the net? Where do you want to be in five years? And where do you want to be in 10 years and be obnoxious? Tell me why. And believe me, I've heard it, we're going to be a unicorn and everybody's, we're the next Uber. Okay, well, no, you know, um, but what are your ambitions? And what is your plan because it's a very different thing. To me, if a brand says we want to remain cult, you know, corporate have a cult following our loyal consumers, we want to stay kind of under the not under the radar because obviously, they you know, want to make money. But we want to kind of be not mainstream, but have a cult following and speak to our truth and our consumers. And that works for us. Compare that with the businesses that maybe their startup and maybe they're small and have a cult following, but their ambition is to be purchased by I mean, say it's safe, like a craft brew, and they want a B InBev knocking on their door to buy them or they want private equity money or they want you know, a strategic buyer, whatever it might be. So it's really like kind of looking at your trajectory and how, how might your brand selection and your brand messaging limit you or or how might it position you for growth? Um, you know, the word scalability, I know it's a buzzword, but it really is significant because there are clients that come to me and they start off as say it's a cosmetics brand or it's a small fashion brand or something small and they have their cult following but their idea and their ambitions are to grow into a lifestyle brand that could be purchased by one of the major fashion houses or one of the major conglomerates if that's their goal, they might want to be a little bit more neutral about their messaging. Right? So it's really how risk tolerant are you and what are your What are your goals and ambitions and you know unfortunately some of the businesses when they come to me and it's at a start in their startup you know minded always envision well it's it's the three of us and it's always going to be the three of us and we're always going to do this more it's gonna be aligned and then you know, Money Talks sometimes dollars dollar signs come along and there's a change division and there's a sale and then there's a change at the you know, organizational level so you lose a little bit authenticity and a little bit of like personal touch on the brand there but it's really about a brand's goals and future and ambition in terms of what the the messaging is coming out of the gate.

Darshan

So so I'm gonna translate what you just said more from the consumer product branding level to the foreigner level. I don't know how much you work in pharma but did you do a significant muscle work?

Christiane

We Yeah, perfect so

Darshan

I'm not talking about any company specific but let's say you had a orphan disease state or you had a rare disease product do you advise these companies to to be more out there with their messaging mostly because a it it speaks to their assumingly authentic it speaks to their purpose and they're not looking to grow into the next Pfizer not because Pfizer wouldn't buy them but because like their organization is by definition a rare disease state organization so speaking out to those values speaks a little bit better and conversely if you work for Pfizer, would you tell them to be less more neutral if you will, for lack of a better term? Yeah, I don't know if you work for Pfizer No.

Christiane

No, I got the vaccine No. Big fan right now. No, you know it, again, it comes down to the consumers, um, they're gonna have to look at who are the consumers are they who are they going to be marketing to is it going to be you know, if it's, if it's a smaller specific, like one draw, I want to call them a one trick pony but like a one drug company, if they want to attract the likes of a Pfizer, a mark of a big pharma company, um, you know, maybe their messaging should be a little bit more neutral. But if they want to continue independently, which is which is probably hard to do from a financial standpoint, anyway, um, to job that to fund research, the development, the clinical trials, the marketing, the getting the pharmaceutical marketers into the right places, and to the right doctors offices. So, um, you know, if it's, if it's scalable, or if it's doable and sustainable at a small level. And they're, you know, at their core, and their value, and what's made them kind of attractive to their consumers is that they have their own authentic views, and they are comfortable being open about them, it might work for them. But again, scalability, if we're looking to get purchased by a big pharma company, they might not want to openly voice an opinion that might be less popular with one of those bigger companies.

Darshan

So I think that's kind of interesting. It opens up a interesting kind of worms in that when I think about corporate social responsibility, I think about a more, you're talking about a cause that's typically national, you're talking about a cause that's global sometimes. But But one of the things I'm seeing more and more is, at least in the pharma world, this whole angle of patient centricity, and and what that really translates into is pharma working and trying to address individual patient's needs in a more in a compliant way. And that has its own own problems for sure. That's that's their goal. I guess my question for you is when you're talking to CSR, or you're talking ESG Are you are you typically advising them at a global level or national level? Are you kind of going? Let's also look at your plans at a more local level, and at a more individual level? How does that play out from a branding perspective or trademarking perspective?

Christiane

That's such a good question because it kind of goes hand in hand with that idea of like, Where do you see yourself in five years not just where figuratively but where literally, um, is this a product that you conceivably would market outside of the United States, and if it is, and this is literally what I do every day is figuring out brand portfolios, which are like giant puzzles, and you're fitting the pieces together. Um, very, very interesting part of the practice, one brand may not resonate in different jurisdictions consistently. So there are companies that we will say, Okay, well, if you're if your plan is to expand into mostly English speaking jurisdictions, you know, we can kind of clear the brand we can do the messaging from from this perspective. But if you are going to go into lab, which is Latin American countries, South America, there are some other things we have to think about. Some of those jurisdictions actually are a little bit less prudish than the United States. So it's just a way of giving an example of brands that might fly in South America that wouldn't necessarily work here. I'm always surprised to see what does compare that with places like for example,

Darshan

by the way,

Christiane

before you go on, um, yeah, we have a quick service restaurant company that got away with or not got away with, um, they, they use this Gypsy arenado guy to advertise their chicken, which probably wouldn't work in the United States, it's like, it's literally a chicken, that's a gypsy, but they love it in South America. No, I don't know, like this, or like to see what I'm eat dancing before, I'm going to put it on a plate, but that's just me. Um, compare that with Singapore, which has, you know, a little bit tighter, a little bit more conservative views in some aspects. And then contrast that with some places in Europe, where you might get away with more, they're just, there's certain brands that you might have to translate, and then you have to think about relative issues as well, um, you know, certain certain words, certain terms might already be popular in one jurisdiction, as opposed to another. So yeah, I think you know, going try to bring that back to your question. We, we think, locally, if that's going to be the extent, you know, if you're telling me we're never leaving Miami, okay, we're never leaving Miami, we're a hotel, we're building this like, boutique hotel in Miami. One brand might work really well in Miami. But if they were saying if this client was saying to me while we're looking at doing like a chain of hotels, and the next one's gonna be in Nashville, and after that, Austin, and then we're going to go to Southern California, I might say, Okay, so the Miami like rainbow color scheme with some, you know, different might not work as well in Austin, where it just so going beyond that, you know, outside the United States, things that work in Europe may not in Asia and Australia, South Pacific? Um, so yes, it is. There's a lot of taking cultural norms, and what I can learn about them as quickly as possible, with the legal framework and the legal parameters in different jurisdictions, synthesizing all that and delivering it into a pack, delivering it in a package to a client, and saying, here's kind of what we see for this brand. Here's where we think we can get protection, here's where we think we can enforce here's where you might want to tweak it just a little bit in accordance with cultural norms. And that would apply to farm as well. I mean, we work with, you know, medical device companies that are global. And again, it's looking at your consumer, looking at what works and what doesn't in different jurisdictions, both culturally and legally.

Darshan

So that really raises some some interesting questions. For me, I'll speaking from the perspective of a guy who does FDA regulatory law, the key piece of that jumped out at me is when you start aiming to to do things, for your patients to build that brand equity. One of the things you always worry about is what have you whenever you cross that line, from promoting your product, to incentivizing your your potential consumer patient, in this case, into using your product, and in most other industries, not a huge deal. But in the case of the pharma industry, you started dealing with the anti kickback law and the False Claims Act and all these laws that kick in. When you're dealing with pharma, do you do you typically come in with a whole team? Or how does that generally work? Are they coming to you with a specific question?

Christiane

So it's usually a specific question if it's if it's pharma, or more so with medical devices, also, we got to deal with the FDA

Darshan

regulated

Christiane

regulatory, typically, the company is gonna be big enough that they have people in house that are looking at the FDA and regulatory However, there are. There's kind of a common trend, I would call it I hope it's not a trend. Maybe it's just a theme among pharma device companies were I think it might be the trade show culture, but they like to adopt the names and brands that are very similar to one another. And it's, I believe, wholly innocent, it's completely innocent. It's almost like they go to a trade show and walk the trade show floor and internalize something they see. And then they come to me and say, we've got these five ideas for, you know, a new brand for, you know, a orthopedic screw. These are the ideas we have, and I and I can guarantee you, I can look at our competitive the company's competitors, and they probably got close brands. So, um, you know, I think pharma med devices are similar. And, you know, my point in saying that is there is typically a bigger background check going on than just the brand clearance. I will. I mean, it happens with alcohol too, with cola. We'll look at FDA, regulatory, we will evaluate not just the brand itself, but also the brand, the marketing pieces, the website, all the collateral to make sure there's FDA compliance. And it goes hand in hand also with, you know, false advertising claims, I look more at the false advertising because it's the Lanham Act and unfair competition, but yeah, from from both perspectives, and that's, that's what I'm talking about with the holistic approach. Like, you can't just pick a name and say, all right, well, nobody else has it. So we're good to go. Um, you've got to look at you know, our how are we going to message this? Are there FDA issues? Are there potential false advertising claims? Are there social issues with that? I mean, there's it's peeking around the corner is I mean, I it's it's kind of nerve racking, sometimes I've seen advertising campaigns come out. And, you know, immediately following see the blowback on, you know, social media. And I'm always thinking to myself, if that company had come to me and asked me to clear this brand before they launched it, and before they made this statement on Twitter before they went live with the Superbowl ad, what I have stopped them, because from a rope brand perspective, there aren't any infringement issues. There aren't any relative issues are not going to get sued by you know, one of the big players. But what I have said, yeah, that's probably okay. Or what I peeked around the corners and said, You know what, you're gonna have at least a vocal minority. speaking out against that statement, because it doesn't resonate. Well. Like the peloton ad. Yeah, I don't know that I would have told peloton don't go forward with this. You're gonna offend a lot of women?

Darshan

I thought that was a really interesting, I don't know if I could have

Christiane

as a woman who doesn't own peloton, I would I wouldn't be offended if my husband bought me one. I've asked her what she hasn't got. Um, I, you know, sometimes there's, I hate to say there's a sensitivity you have to be aware of, but is it? Is it justified? You know, is it a vocal minority? That's going to get up in arms? And and if there is a vocal minority? Is that going to impact? Is that going to impact the brand? Because they're so vocal? Social media gives everyone a platform?

Darshan

Speak speaking about branding, speaking about medical devices, because you pulled into them? Are you familiar with what a 510? k is?

Christiane

Yeah. Okay, no, no, no, I'm sorry.

Darshan

Let me repeat that for you. So that gives you something, give you an IV listing some context, essentially a 510 Ks, you're going to be FDA saying, I'm so similar to another brand that you've already approved, that you're going to approve me using a shortened pathway. And I don't raise any new risks, if you will, for lack of a better term. One of the things I see with a lot of my clients is, they're all eager to go down to 510 k pathway, because they're always going, this will be so fast, I can get into the market quicker, blah, blah, blah. And then they get to the market, and then they realize they can't say anything new, which raises risks. So from a branding perspective, how often do you find yourself advising these companies big, even though they're coming at you with they're really happy because they get it can get onto the market? And now they're struggling on how to position themselves? Do you guide them in that position? How do you sort of advise them?

Christiane

That's such a good question. Um, you know that the FDA actually is one of the main reasons that the United States Patent and Trademark Office has what's called the intent to use filing system. Yeah, the United States is uniquely it's a US based jurisdiction. So you have trademark rights brand rights, from inception, from the time you put a mark on a product that is offered, transported in commerce, long story, legal language, but they allow you to file what's called an intent to use application and the main reason I believe was because of drugs. You know, in pharma industry that were not yet approved, but they wanted to secure the brand, right? So they file an application, go through the FDA approval process. And then ultimately, once they're approved, they get the brand registered. But not only that, they get what's called a constructive first use date and the US priorities King back to the filing date. So the whole FDA approval process is is obviously very significant to brands and significant to the branding and official branding process before the US Patent trademark office. Um, the the 510 K, I didn't put a label on it, but I have had clients asked me about that. I hear you talk about it, and my brain immediately goes to if I ever had an infringement case. That would be a great piece of evidence, if I had two brands that were somewhat close. And I need to show like motive opportunity intent to infringe. And intent is is a factor, because it they said well, we're going to ride in on this brand's coattails. That says to me, well, you had awareness and knowledge and willfulness is also plays a part less so in damages now after the recent Supreme Court ruling, but but I would use that as evidence to say, well, you're you're using somebody else's clear path. And that exact theme is what's codified in the Lanham Act with under unfair competition is you cannot trade on the goodwill that somebody else has built up. And that is the definition of trademark infringement. Right? You, you take and adopt a brand that's confusingly similar to somebody else's, and you're literally riding on their coattails you are usurping the language, the goodwill established by the brand. And that's, that's the argument we make whenever we're on the complaining plaintiffs side against trademark infringement is we've spent X amount of dollars on marketing X amount of dollars on advertising. Our sales revenues are this we've had continuous exclusive use for the last five plus years, our brand is strong. And then here comes this party that just adopt something similar. And I virtue of the fact that people think either it's an offshoot of ours or it's approved or licensed by us they trade on our goodwill. So I know that's kind of like a maybe a stretch of an analogy. There's definitely a common theme there on like the goodwill and the trading on goodwill. So, you know, one of the FDA, I guess I get it, because there's a there's a consumer need, there's a public need served by getting drugs to the market faster, um, devices, branding, you know, you've you've literally got an infringement case there. So,

Darshan

so I'm gonna give you this. I think this is today's news. If I remember correctly, I can keep track of days anymore. But today's news was there, it was a FDA approved drug. Do you know what a compounding pharmacy is? No. Okay. compounding pharmacy pharmacists are allowed by law to make individual customized medications for good way.

Christiane

To do that, right bundler license. I'm sorry, a pharmacist would have to be licensed to do that. Right?

Darshan

Absolutely. So essentially, they were compounding medications that were approved by the FDA. And the company came out and sued them saying that you're not allowed to do this. Interestingly enough, today's court case, if I remember correctly, came out and said, they sued under the Lanham Act, saying that this could be an issue in the Lanham Act. And today's news was the court said, we're going to leave it for the FDA to decide and not confused this using the Lanham Act. But I thought that was very, very onpoint for the discussion we're having.

Christiane

That is because the compounding I'm not familiar with it, but I think I can, you know, assume enough to be dangerous. The compounding so maybe you're taking two generics, but more likely are taking two brand name drugs, right?

Darshan

No, no. So it's something like that. So aspirin foreign mistake, right? So let's say let's say aspirin was it was out there, I'm making aspirin, I'm charging you $10,000 for the aspirin tablet, right? I'm a compounding pharmacist, I can technically go buy aspirin off the raw materials for aspirin and compound, an aspirin tablet for you, and then sell it to your patients. $1,000 Yeah, and I'm allowed to do that under my license. But then FDA has come out and basically said that you can do that in only specific circumstances. And be and I've actually had several clients reach out to me about something similar, and I've always told them that this might be an opportunity, but today's court case is kind of interesting. But the point being in the in the the the FDA is so overwhelmed right now with COVID Everything now that they've basically not been taking action for the compound against the compounders. The pharma company who's charging $10,000 is going, I put a bunch of money towards this. Patients are going I don't want to pay you $10,000 if I knew the same thing for 100 bucks, right? So the question was, could you bring a case under the Lanham Act?

Christiane

You could have your

Darshan

bachelor's fiction was problematic. Yeah,

Christiane

you probably have a first sale doctrine issue. Um, would you have consumer confusion because you're essentially reselling it. There's there's a lot of issues that that would raise, I mean, you, you would have a Lanham Act claim, you could articulate clear claims that would probably survive a motion to dismiss. But I do think you'd have defenses under first sale. Um, now if you rebranded the product,

Darshan

let's say you called it something different. So instead of aspirin, you called it. Was that?

Christiane

Yeah, yeah, you

Darshan

put the generic name on it. So a CD will be on there.

Christiane

Right? So then you're then it could be passing off, you're taking one product, passing it off as a, there's a Yeah, there's a lot of it's interesting to look at it from a Lanham Act perspective. Um, again, that's an interesting case, too, because you'd have a balance of the public public need, right? Say, and they, well, the big pharma company already made its $10,000. Right, you know, if the pharmacist or somebody purchased it for $10,000, and then reused it, but, um, yeah, certainly colorable Lanham Act claims.

Darshan

Yeah. I totally want to talk about the first sale doctrine. that pops up often enough, but I'm already well over the time that I'm supposed to take with you.

Christiane

Every time it happens

Darshan

every single time, but that's exactly why these conversations are so fun. Quick question for you. What is a question invite the audience to answer for us?

Christiane

Oh, goodness, um, um, I would love to hear from the audience in it for, for them to give an example of a recent brand or ad or marketing campaign that they saw and thought, whoa, who cleared that? I love hearing about these stories, because I was thinking to myself, would I have cleared that? Would I have allowed that to fly Superbowl? That's why I watch the Superbowl course. But, you know, most years, that's not the case.

Darshan

Fair enough. here's here's my suggestion. Just follow Tom Brady. Apparently, that's all it takes. What let's let's, let's sort of do a quick summary. Actually, let me ask you two rapid fire questions before we go there. What challenged you this month?

Christiane

Um, my mom will challenge me this month. She had a good answer. I think last month, I said not having enough hours in the day, I still don't have any more. So that problem hasn't challenged me this month, China was a challenge. Um, and I've had a lot of issues in South America or Latin American countries with branding recently.

Darshan

Okay, for a second, I was gonna ask if you just invest in Bitcoin? Is that what happened with China? No, okay. What inspired you this week?

Christiane

Oh, my kids. Oh, my kids? Um, no. And I think also, you know, seeing news about kind of a relaxation and seeing the comfort level. I mean, we're, we're in Pennsylvania jersey, seeing the comfort level of people increase. I think, as we're outside more as mass restrictions are being lifted as indoor restrictions are going away. The willingness of people to kind of gather again and be in the office is motivating and inspiring.

Darshan

Very, very cool. I'm going to do a quick summary. During this conversation, we talked about some of your experiences, we talked about corporate social responsibility. We talked about environmental social governance, we talked about the difference between the two, we talked about how you're now looking at things from a holistic manner. And looking at just pure trademark clearances is probably not the ideal way to take things. You talk about the value of authenticity. You talked about, we talked a little bit about speaking to the consumer and choosing and and parsing the vocal minority from the majority and how do you do that? We talked a little bit about global expectations and then taking it down to the local level. We then got into it very briefly into anti kickback False Claims Act papers. And then we got into advertising and 510 Ks for example. I'm really been delving deeper into the Lanham Act. Did I miss anything?

Christiane

No, but I should have asked a better question. You always said you learned something. What did you learn today?

Darshan

What did I learn today? Um, I think my first easy one that I learned today was the fact that the fact that the intent to use came from primarily came or potentially came from the FDA. I do not know that I have

Christiane

certain fears. But the the thing I've always been told, I've just never read it. I've always been told that FDA approval was a main reason and obviously pharma speaks volumes to the US government. So you know, that and we are fortunate that we have the it filing system.

Darshan

I'd be curious what others have heard and what what others have learned in our conversation today. So that's great question. Actually. That was my that was my takeaway. Quick, quick, important question. Where can they reach you Christy?

Christiane

Um, my email is the best way to reach me or LinkedIn. I can type in my email, if that's best for you.

Darshan

I'm sure I'll just say it aloud because people might be listening.

Christiane

At Dewayne can't spell and right at the same time, Maurice? calm.

Darshan

That's Christie, Christie Campbell and Christiane Campbell.

Christiane

It's christianbook C. Campbell's the email address.

Darshan

C Campbell at Duane Morris calm and Campbell's Soup for

Christiane

now no relation. No relation.

Darshan

Very, very cool. Um, if you liked this podcast, please leave a comment. Please subscribe. You can find me at DarshanTalks on Twitter or go to our website at DarshanTalks calm to see this was awesome. Thank you so much.

Christiane

Nice. Pleasure to be here. Thanks. Appreciate it.

Christiane

This is the DarshanTalks podcast, regulatory guy, irregular podcast with host Darshan Kulkarni. You can find the show on twitter at DarshanTalks or the show's website at DarshanTalks.com

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