Why Small Businesses Should
Celebrate Genericide
Patent
and trademark enforcement has become an important economic tool for
entrepreneurs.
EXPERT OPINION BY HOWARD TULLMAN, GENERAL MANAGING PARTNER, G2T3V
AND CHICAGO HIGH TECH INVESTORS @HOWARDTULLMAN1
Jun 10,
2025
Nabisco’s Nilla Wafers
have been a reliable staple in cookie jars since 1898, but the brand name is
only 58 years old. In 1967, Nabisco rebranded the product from Vanilla Wafers
to Nilla Wafers. Unlike “Nilla,” a protectable name that could be trademarked,
“Vanilla Wafers” had become a victim of genericide—when a brand name loses its
identity thanks to consumers using it to refer to all products in its category.
Like Zipper, Aspirin, Cellophane, and Escalator—whose owners had failed to
preserve their legal and proprietary status—the sweet treats had become so
common and popular that the name came to be regarded as generic.
Today, Genericide is one
of the only “-cides” that small businesses should cheer for. Patent and
trademark enforcement has become an important economic tool for all manner of
merchants. Last month, Mondelez International, which now owns and manufactures Wheat
Thins, filed a federal lawsuit in Chicago to stop the multinational supermarket
chain Aldi from selling store-brand products that blatantly copy and infringe
on its trademarks. The crafty and innovative marketers at Aldi have been
selling crackers called Thin Wheat, which Mondelez argues could be confused
with Wheat Thins.
The classic examples of
aggressive and successful litigants are Kleenex and Xerox (still protected)
and, more recently, Google. It will be interesting to see what happens with
ChatGPT and Ozempic. With millions of dollars in sales and huge investments made
by large companies in building brand equity, you can be sure that the rip-offs,
the hairsplitting, and the lawsuits are coming.
When patent and
trademark enforcement is abused, as it has been for decades in the drug
business, with the continued blessing of bribed Congressmen, it ends up costing
consumers millions of dollars in inflated pharmaceutical prices. It also
prevents important and widely used drugs that have been around for decades from
becoming generic and subject to lower-cost production, duplication, and
distribution of generic versions by other manufacturers.
Trademark or patent
expiration is the worst nightmare of biopharmaceutical companies like AbbVie,
AstraZeneca and Bristol-Myers. Low-cost competition is a close second. Mark
Cuban’s Cost
Plus Drugs might well be in third place. And to be very clear,
this isn’t something trivial. There are thousands of lives hanging in the
balance, even as MAGA enabler and Iowa Senator Joni Ernst snidely notes that
“we all are going to die” eventually. High prices make it harder for millions
of consumers who need the drugs to access and afford to pay for them.
One of the main ploys of
the pharma frauds is to artificially extend expiring patents and trademarks
(which would open the market to generics) to continue to suppress and exclude
competition and keep prices as high as possible. This approach, often called
“evergreening,” consists of reformulating the same drug into extended-release
versions, creating new delivery methods, changing dosages, and seeking broader
and additional uses for the drugs. All of these strategies are accompanied by
massive ad campaigns and direct attacks on the efficacy of substitutes and any
generic alternatives.
AbbVie, for example, was
able to secure and maintain exclusivity in the U.S. market for Humira for over
20 years after initial approval. AstraZeneca built Nexium into a $5 billion
annual product line by rebranding an older drug, claiming it was a new and
improved version, and limiting distribution. Bristol-Myers litigated for years
with various generics and conducted repeated lengthy trials to prop up and
build Abilify into a $9 billion product line.
There’s some modest good
news on the horizon, although much of it will need to await the departure of
the Orange Monster and his flunkies, who are comfortably in the pocket of Big
Pharma.
Increasingly, and
especially after the pandemic, which effectively democratized and dissipated
much of the mystery of medicine, millions of consumers are wising up and moving
from the expensive brands to store brands, OTC products, and generics. Much more
needs to be done to break through the ongoing consolidation of drug
manufacturers; to break down the price-gouging medical oligopolies; and to
reform, improve, and actively enforce all of the available legal and
administrative regulations and limitations.
We can live with bands
like the Eagles and Led Zeppelin extending their shelf lives and livelihoods by
replacing dead band members with their somewhat talented sons, but our medicine
is life-changing and lifesaving. We shouldn’t tolerate or accept parasitical
pharmaceutical companies that delay and defer the availability of critically
important drugs for years to maximize their profits.