Beyond Class 5 - Expanding trade mark protection for pharmaceutical and healthcare companies

This article explains why with the digitalisation of medicine and healthcare, brand owners in these fields should consider looking beyond the traditional products and services and explore trade mark protection in classes that have historically been more relevant to technology companies.

Over the last ten years or so, we have seen a convergence between the healthcare sector and the digital/information technology sectors. Technology has become a valuable tool for healthcare professionals, healthcare companies and patients, to diagnose, manage and monitor symptoms and illnesses and make healthcare services more accessible to patients, as well as for drug research and development.

When protecting trade marks, pharmaceutical companies and healthcare companies have traditionally focused on covering goods and services in Class 5 (pharmaceutical preparations), Class 10 (medical devices), and Class 44 (medical and healthcare services).

However, with the digitalisation of medicine and healthcare, there is now a need to look beyond the traditional products and services in those Classes and to ensure that there is protection for a wider range of products and services, particularly in Classes 9 and 42, which would traditionally have been more relevant to technology companies.

What is digital medicine? "Digital medicine refers to the application of advanced digital technologies, such as artificial intelligence, machine learning, and big data analytics, to improve patient outcomes and healthcare delivery. It involves the integration of technology and medicine to facilitate the creation, storage, analysis, and dissemination of health information, with the aim of enhancing clinical decision-making, improving patient care, and reducing costs." (source).

Digital medicine or digital healthcare can refer to any technology used in the healthcare sector, and can include any of the following:

• Sensors, for example wearable sensors or devices to monitor glucose levels in diabetics
• Remote monitoring equipment which enables healthcare professionals to assess patients from home
• Digital pills with sensors or cameras to diagnose or assess the effectiveness of drugs
• Software apps for managing illnesses, tracking symptoms and recording test results and medication
• Apps for locating and getting in touch/arranging appointments with healthcare providers
• Online GP services and consultation services (telemedicine)
• Access to medical records online via patient portals
• Software to notify patients of appointments or send reminders
• Electronic prescription services and other software enabling pharmacies and GPs to transmit data and keep records up to date (such as immunisation records)
• Artificial intelligence and chatbot software for providing information, advice and support in relation to specific illnesses and treatments
• Apps to collect data for clinical trials and medical reporting purposes

The emergence of the Metaverse and virtual environments will also likely lead to more and more healthcare services being provided online or ‘virtually’.

What does this mean for IP and trade mark protection?

The sensors and monitors listed above, digital or otherwise, would be covered by Class 10 as they are medical monitoring equipment. This includes ingestible capsules for collecting and transmitting patient data. However, many of the other examples of digital medicine set out above would not be covered by the traditional Classes (5, 10 and 44) and healthcare companies are likely to need to extend their protection into other Classes. For marks used in the digital medicine field, it would be necessary to cover, for example, software, applications and monitoring apparatus in Class 9, and software as a service, online platforms, scientific and technological services and research and design services in Class 42.

Innovation

Digital products and services such as software are, and will increasingly be, integral to the healthcare sector. Healthcare companies are continuously innovating and developing new technologies to improve patient care and, accordingly, it is essential that companies continue to review their trade mark portfolios and protection in order to ensure that, where necessary, new applications are filed to cover all new products and services.

It is also important to consider whether a combination of different IP rights would be suitable, in order to protect all aspects of the products, such as registered designs to protect the appearance of wearable devices or other sensors.

Our attorneys have direct experience of working with pharma and healthcare businesses and understand the importance and special considerations of trade marks in these industries. We are a European firm and assist our clients to protect their IP rights in the UK, Europe and worldwide from our offices in the UK and The Netherlands and through our international network of trusted local attorneys.

Get in touch if you would like to discuss your innovations and brand protection further.