Congratulations to Iván Resendiz Gutierrez, Bruce L. Campbell, and the firm’s appellate team for their collaboration with the National Hispanic Medical Association (NHMA) in submitting an amicus curiae (friend-of-the-court) brief in the U.S. Supreme Court in Belmora LLC v. Bayer Consumer Care AG Bayer Healthcare LLC, Case No. 21-195. NHMA is a non-profit organization that seeks to improve the health of Hispanic Americans. The amicus brief explains why the case is important to the health of Hispanic Americans.
Below is the full press release and a copy of the brief is available here.
Press release prepared by Belmora LLC.
For more information, contact Iván Resendiz Gutierrez at 503.205.2377 or Lawrence Ebner at 202.729.6337.
Leading Hispanic Medical Organization Files Amicus Brief With Supreme Court To Protect Health of Hispanic Americans
Urges High Court Review in “FLANAX” Trademark Battle with German Big Pharma, Bayer AG
Washington — (September 14, 2021) — The National Hispanic Medical Association (NHMA), which supports more than 50,000 licensed Hispanic physicians in the United States, has filed an amicus (friend-of-the-court) brief with the U.S. Supreme Court supporting review in Belmora LLC v. Bayer Consumer Care AG Bayer Healthcare LLC, Case No. 21-195. NHMA is a non-profit organization that seeks to improve the health of Hispanic Americans. It works closely with the White House, Congress, federal agencies, and the private sector in carrying out its mission.
Belmora is a small, Virginia-based pharmaceutical company that markets and sells Flanax, an FDA-approved, over-the-counter pain-reliever product containing naproxen sodium—the same active ingredient as in Bayer’s Aleve. Belmora Flanax is a popular analgesic product in Hispanic-American communities, and is sold at over 15,000 retail outlets in more than 40 States. Unlike Aleve, Belmora’s Flanax Pain Reliever Tablets have unique bilingual packaging and labeling for the benefit of Spanish-speaking consumers.
“Two of the biggest obstacles for the Hispanic community in finding quality health care are trust and overcoming language barriers,” said Iván Resendiz Gutierrez, attorney for NHMA. “Belmora’s Flanax for many years has provided both for Spanish-speaking consumers in the United States.”
In 2005, Belmora obtained a U.S. trademark registration for the FLANAX name. Seven months later, Bayer Consumer Care AG, a Swiss subsidiary of its German parent, Bayer AG, acquired the Mexican FLANAX trademark from Hoffmann-La Roche. In 2007, Bayer Consumer Care AG began pursuing actions under the Lanham Act (the federal trademark statute), which if successful, would prevent Belmora from competing against Bayer’s Aleve for Spanish-speaking consumers in the United States. Bayer already has persuaded the U.S. Patent and Trademark Office to cancel Belmora’s registration for the FLANAX trademark. In addition, Bayer alleges in federal court litigation that Belmora has engaged in unfair competition by using the FLANAX name in the United States—even though Bayer’s Mexican Flanax cannot be legally sold here.
In its brief, NHMA addressed “the principle of trademark territoriality encompassed by the Lanham Act and whether it extends to the foreign owner of a foreign trademark that has not registered or used the mark in the United States. The answer to that question could have significant health and welfare implications for Hispanics in the U.S. and have a profound impact on how Hispanics purchase over-the-counter medications and other products in this country.”
NHMA maintains that the Supreme Court should grant Belmora’s petition to (1) answer the trademark territoriality questions dividing at least four federal circuit courts of appeals—the Second, Fourth, Ninth, and Federal Circuits; (2) provide U.S. trademark owners with much-needed guidance on their rights under the Lanham Act; and (3) ensure that Hispanic and other underserved communities have access to a diverse array of health-care products.
“Competition led a U.S.-based company to adopt a creative and inclusive marketing strategy to better serve the Hispanic community.” But “if the Fourth Circuit decisions are allowed to stand, a large, fast-growing community will be legally deprived of a safe, effective product they know and understand in their native tongue,” NHMA’s brief says.
The National Hispanic Medical Association’s counsel, Iván Resendiz Gutierrez of Miller Nash LLP, in Portland, Oregon, and Belmora’s Supreme Court counsel, Lawrence S. Ebner of Capital Appellate Advocacy LLC in Washington, DC, are available for interview or comment through the contact information above. For the full text of the amicus brief, click here.