Private Label Buyer

Walgreen Co. Can't Trademark Private Label Zyrtec

February 14, 2013

The U.S. Patent and Trademark Office has rejected Walgreen Co.'s bid to sell its private label version of the allergy drug Zyrtec under the name Wal-Zyr, according to Law360, rejecting the retailer's survey evidence showing minimal confusion between the two brands.

Walgreen applied for a trademark on the term in September 2007, saying that it planned to use the name to market "pharmaceuticals, namely allergy medications."

The USPTO's Trademark Trial and Appeal Board sustained Zyrtec maker McNeil-PPC Inc.'s objection to the Wal-Zyr mark. The board said Zyrtec was a strong mark and Walgreen's incorporation of the brand into the name of its product formed  “similarities in appearance, sound, connotation and overall commercial impression” between the two products. Walgreen contended that incorporating Zyrtec into Wal-Zyr was intended to convey that the two products were equivalent, not that they were connected. The USPTO also rejected as not sufficiently probative Walgreen's survey evidence showing a low likelihood of confusion as not sufficiently probative.

“Whatever applicant’s intent was, such affiliation goes beyond merely 'calling to mind' a prior user’s mark,” the USPTO said in its Jan. 22 ruling.