h a l f b a k e r yPoint of hors d'oevre
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herbal™
Pfizer's "Viagra" anti-impotence pill has been controversial, raising more than eyebrows. | |
That hasn't stopped marketers of non-prescription products for sexual enhancement from advertising the availability of their "herbal" Viagra, so why should we worry? After all, only a few folks really know or care where Viagra comes from … animal, vegetable, or mineral. We tolerate the association
of a trademarked name with its use, that is, we trade effect for cause and thereby can justify offering an alternative product for the same effect without conspiring to commit an offense under the pure FDA by stooping to adulterate an existing product to make it more environmentally pure by making a version of it with totally grown-down-on-the-farm ingredients.
We can, logically then if not practically, sell products of our own admixture as long as we can describe what the product is supposed to do to us physiologically and as long as we make it from herbalist harvested plants and as long as we call it "Herbal™ (insert the name of the prescription drug you want to compete with)" We'll make a killing!
One herbal™ pioneer
http://www.herbal-v...natives-online.com/
Also available: checkout-my-big-herbal-sale.com [reensure, Oct 25 2001]
Nicholas Culpeper
http://www.consciou.../b105culpepers.html
This guy had it all sewn up in the 17th century. [angel, Oct 25 2001]
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I wouldn't fancy this for the simple reason that one slip-up and you'd be sued to oblivion by a very rich and very angry drugs company. The products you describe seem to be sold as "Herbal Viagra Substitutes". Selling them as "Herbal Viagra", or using the Viagra name too prominently, might open yourself to charges that you are pretending to have some connection with Pfizer. A lot of these products are sold through small shops or mail order, so they don't have to be so strict, as they are less likely to be spotted and sued. But if you started making serious money out of this, then they'll be on you like a pack of lawyers - I mean, vultures. |
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Hopefully nothing worse than a huge jury verdit would result. I'd hate to think that someone didn't get the effect they wanted and suffered as a result, or worse, that products that could cause some injury would be available without a prescription to kids. This is possible, I think, because there are no restrictions on the sale of herbal™ exstacy, or herbal™ prozac products. So what's wrong with things like herbal™ tylenol? |
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The legal threats [pottedstu] refers to don't concern liability for ineffectiveness or damage to the user, but rather trademark infringement. Using the name of a product owned by a big corporation is a risky business, whether or not you intend any sort of actual connection to the offical product. Creating the what is seen as the likelihood of customer confusion is enough for the trademark holder to have a strong case against someone using a name like Herbal Tylenol. |
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Good luck getting the term herbal trademarked, too. |
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I think maybe hërba-seltzer would get under the radar, but fooling people is far from the point of what is intended by this. The concept involves taking a product with a defensible name like hërba-seltzer, and then marketing it as herbal™ alka-seltzer. On the one hand there are objections to similar and potentially confusing names. On the other hand there are seemingly fewer objection to prima facie portraying a product as "the same as, only made from all-natural herbs" an existing product that is already subject to public scrutiny. |
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A particular favorite around here is Bugmansia, from the solanaceæ family. I've joined with several parents in spreading the alarm about that one, as with pennyroyal and some other garden herbs that find their way into the food chain. Cross sensitivity does not seem to be an issue in the biomass encapsulation industry. One of my favorite stories concerns military herb (yarrow) and yohimbine. Hey! Herbal™ RU-489! |
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[reensure]: I didn't mean to suggest that your idea is tantamount to fooling people in any way, just that corporate trademark holders are particularly sensitive (and powerful) when it comes to perceived infringement. |
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As well they should be. Last I heard, there is a window of opportunity for a trademark owner to complain about use of or abuse of a trademark before that complaint is indefensible. The basis of the rule has something to do with activity under the seal of the trademark. Without this particular rule the courts would be inundated with suit claiming infringement of the name 'Saltine' or 'Horseless Carriage' mmm No-saltines? |
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Right. They have to or they'd lose their rights (see Aspirin). Once confusion between the brand name and the product itself arises, it's litigation city. Kind of a double-edged sword for TM holders, as they want their name to be as famous as possible, but not so famous that people confuse it with the product it names (Kleenex, Xerox have caused extensive legal battles). |
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I remember a particularly effective Herbal? Appetite Enhancer from my youth... |
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