Trade Mark Law: Current Issues in the Life Sciences and Healthcare Sector (2026)

Trade mark law in the life sciences and healthcare sector is currently undergoing a phase of transformation. Unlike in traditional consumer goods markets, brand strategy in this field is not merely an economic marketing tool but is simultaneously influenced by considerations of patient safety, regulatory compliance and global market launch. The following developments are shaping practice to a particularly significant degree at present.

Convergence of Trade Mark Law and Regulation

A central leitmotif of the current landscape is the increasing interweaving of trade mark and regulatory scrutiny. Whereas trade mark law and pharmaceutical marketing authorisation were formerly regarded as largely separate disciplines, it is now almost impossible to draw a clear dividing line between them.

The selection of a product name in the pharmaceutical field is no longer solely a question of distinctiveness or freedom from conflicting rights; it is simultaneously subject to strict regulatory control by authorities such as the European Medicines Agency (EMA) or the U.S. Food and Drug Administration (FDA). These bodies examine, in particular, whether a medicinal product name is liable to give rise to medication errors.

In practice, this means that even a designation that is unproblematic from a trade mark law perspective may fail on regulatory grounds. Accordingly, there is a growing need to integrate trade mark law, regulatory affairs and marketing at an early stage. This trend is shifting advisory work into the early phases of product development and compelling companies to adopt interdisciplinary strategies.

Patient Safety as a Guiding Principle (LASA Risks)

In the healthcare sector, the avoidance of so-called look-alike/sound-alike risks (LASA) is gaining increasing importance. Unlike in classical trade mark law, where the likelihood of confusion primarily protects economic interests, the focus here is on patient safety.

Regulatory authorities reject trade mark names where there is a relevant visual or phonetic similarity to existing medicinal products. Experience shows that a significant proportion of rejections of pharmaceutical trade mark names by marketing authorisation bodies such as the EMA or the BfArM (the German Federal Institute for Drugs and Medical Devices) is attributable to precisely such risks.

This development shifts the focus: the classical trade mark law assessment based on the model of the "average consumer who is reasonably well-informed and reasonably observant and circumspect" is supplemented or even superseded in the pharmaceutical field by a risk-based analysis. For practitioners, this means that even minor similarities may be impermissible — not for trade mark or competition law reasons, but on public health grounds.

Name Scarcity and Increasing Conflict Intensity

A further issue is the growing scarcity of suitable pharmaceutical names. The number of trade mark applications in the healthcare sector — particularly in Class 5 — has risen dramatically in recent years.

For companies, this gives rise to several practical consequences:

• The development of suitable names becomes more time-consuming and costly
• The probability of conflicts increases
• Clearance processes become more complex and more international in scope

The result is a shift in emphasis from a purely creative approach towards a risk-minimising naming strategy. The trade mark name is increasingly understood as a scarce resource whose selection requires strategic planning and legal safeguarding.

INN Conflicts as a Structural Problem

A distinctive feature of the pharmaceutical field is the ongoing conflict between trade marks and so-called International Nonproprietary Names (INNs). These generic active substance designations, assigned by the WHO, are in the public domain and must not be monopolised.

Trade marks must therefore be neither identical nor too similar to INNs, nor may they adopt typical INN stems where this could lead to confusion on the market.

With several hundred new INNs each year, the probability of such conflicts is rising continuously. For companies, this creates a structural problem: the scope for creative yet legally permissible marks is becoming ever narrower.

The consequence is an increasing technicalisation of trade mark development, for instance through data-driven screening tools and specialised INN analyses at early stages of development.

New Questions Raised by AI and Digitalisation

Digitalisation is also making its mark on trade mark law in the life sciences sector. In particular, the use of artificial intelligence in the generation of trade mark names and logos is raising novel legal questions.

Issues under discussion include, amongst others:

• The protectability of AI-generated signs
• Questions of attributability and authorship
• Potential risks of misleading consumers through automatically generated brand content

It will be seen, particularly in the health-tech space (e.g. digital health applications or AI-assisted medical devices), whether the existing trade mark law categories are sufficient or whether further adaptation is required. At present, there are indications that the legal assessment of AI use is increasingly becoming an integral part of brand strategy.

Globalisation and Increasing Complexity of Rights Enforcement

Finally, globalisation shapes the life sciences sector more profoundly than many other industries. Medicinal products and medical devices are regularly marketed internationally, necessitating a coordinated trade mark strategy across numerous markets and jurisdictions.

This gives rise to considerable complexity:

• Differing standards in the examination of registrability and the assessment of likelihood of confusion
• Diverging regulatory requirements
• An increasing number of cross-border disputes

At the same time, at the enforcement level, the importance of cross-border enforcement mechanisms and coordinated litigation strategies is growing.

The trend is thus clearly moving towards a globally integrated trade mark strategy, in which legal, regulatory and commercial aspects are not considered in isolation but as part of a unified system.

Conclusion

Trade mark law in the life sciences and healthcare sector is increasingly developing into a complex interdisciplinary field. Classical trade mark law categories are being supplemented and, in part, superseded by regulatory requirements, safety considerations and technological developments.

For practitioners, this means above all one thing: successful trade mark strategies today require, more than ever, early-stage, interdisciplinary and internationally oriented advice.

The closely integrated, interdisciplinary advisory approach of GvW Graf von Westphalen offers affected companies cost-effective support in navigating these complex challenges.

Should you see a need for assistance, please do not hesitate to contact us at any time.