Today, we’re not talking about that Purple Rain, that Color Purple, or those Purple People Eaters, and we’re especially not talking today about Purple Gloves, Purple Bags, Purple Jackets, Purple Candy Wrappers, or Purple Tags, no today, we’re talking about “The Purple Pill,” a/k/a Today’s Purple Pill — AstraZeneca’s blockbuster Nexium brand acid reflux medication.

Just last week, AstraZeneca brought a federal district court action in the District of Delaware, to relieve its heartburn and other forms of damage over Dr. Reddy’s competing generic version of Nexium that is also sold in purple colored capsules.


The Purple Pill Complaint is loaded with references to and colorful examples of “look for” advertising, something we have covered a lot here (don’t forget the Purple Host Jackets at the Phoenix Sky Harbor International Airport):

“To reinforce the brand significance of the color purple, in addition to its ‘purple’ websites, [AstraZeneca]’s advertising and promotional efforts from as early as 2000 to present have consistently focused on educating the public to associate the color purple as applied to capsules for treatment of gastrointestinal (“GI”) diseases and the phrase ‘The Purple Pill®’ (collectively, the “Purple Marks”) with its . . . products, first with Prilosec® and then Nexium®. The express purpose of this ‘look for’ advertising was to establish the purple color and the phrase ‘The Purple Pill®’ as symbols of origin and quality of GI drugs that emanate only from [AstraZeneca], i.e., as brands of [AstraZeneca]. [AstraZeneca] has devoted significant resources over the years to advertise and promote its Prilosec® and then Nexium® purple pills using this ‘look for’ purple advertising.”

Although “look for” advertising is a helpful key to establish distinctiveness of a non-traditional trademark like a single color, the striking and dominant emphasis in AstraZeneca’s complaint seems more designed to help establish fame, and perhaps for fending off any potential aesthetic functionality defense that Dr. Reddy’s might raise, since acquired distinctiveness is not in question, given the incontestable registrations already in place. THE PURPLE PILL word mark, also federally-registered, is another effective form of “look for” advertising.

Oh, one more thing we’re not talking about today, Glaxo’s Purple Inhalers to dispense Advair brand medication for respiratory ailments, as opposed to gastrointestinal ailments. Perhaps this explains why AstraZeneca made this express point in its complaint:

“[AstraZeneca] is not aware of any third-party trademark registrations covering the mark purple applied to capsules or pills for the treatment of GI diseases. Moreover, [AstraZeneca] is not aware of any third parties that have promoted the color purple as a trademark for any pharmaceutical preparations for the treatment of GI diseases.”

So, does this signal that AstraZeneca’s rights in purple are limited to pharmaceuticals for the tummy, or what other types of ailments might need to be covered by a medication to upset their non-traditional trademark stomach?