The Year in Support

CY 2016

Belmora v. Bayer Appeal to U.S. Supreme Court

Belmora Appeals Trademark Battle with German Big Pharma Bayer AG to the U.S. Supreme Court

Founded by registered pharmacist Jamie Belcastro in 2001, the mission of Belmora LLC is to provide safe and effective pharmaceutical products and related health information to consumers, especially in Hispanic and minority communities.

Summing It Up

After fourteen years of litigation before the U.S. Patent and Trademark Office (USPTO) and in federal trial and appellate courts, Belmora, on August 9, 2021, filed a petition with the U.S. Supreme Court to hear Belmora’s appeal.

In 2005, the USPTO approved the registration of our trademark for FLANAX, an FDA-approved over-the-counter analgesic. Since then, Belmora, a small Virginia-based pharmaceutical company, has used the FLANAX name in commerce throughout the U.S. We especially service Hispanic neighborhoods with unique bilingual packaging and labeling. At the time of registration, the pharmaceutical Hoffman-LaRoche marketed its own Flanax in Mexico but at a much higher strength that was not approved by the FDA for over-the-counter use in the United States. Hoffman-LaRoche voiced no objection to the sale of Belmora’s FLANAX and didn’t oppose Belmora’s registration of the FLANAX trademark with the USPTO.

In late-2005, after Belmora had registered the trademark FLANAX, Bayer AG, acquired the Mexican FLANAX trademark from Hoffmann-La Roche. Neither Bayer AG nor any of its subsidiaries has ever registered or used, or attempted to register or use, the FLANAX name in the United States. Instead, Bayer markets its own analgesic under the trade name of Aleve.

Bayer began bringing actions against Belmora under the Lanham Act, which governs U.S. trademarks. Bayer claimed that Belmora’s sales in the U.S. were hurting its Mexican sales because American Hispanics were not buying the Mexican Flanax on their visits to Mexico. On disreputable evidence, Bayer successfully petitioned the USPTO to cancel Belmora’s trademark registration of FLANAX.

Why We Fight

Our battle with mega-pharma Bayer, has been costly and time-consuming but our reasons for doing so reflect the true American spirit.

We fight to enforce long-standing trademark law. 

Bayer’s litigation violates recognized legal principles: territoriality and timeliness. Territoriality means that a trademark is protected only in the country in which it is legally registered. Bayer has never registered or used the FLANAX trademark in the U.S. Therefore, its Mexican FLANAX trademark is not entitled to the protections of the Lanham Act. The principle of territoriality in trademark law has been recognized by the Supreme Court for nearly 100 years. 

Second, the filing of lawsuits must be timely, i.e. they have time limitations in which they can be filed. This is called a “statute of limitations.” By a commonly used standard, a district court stated that Bayer’s filing had missed the statute of limitations by almost a decade.

We fight to force our own government to defend American businesses against foreign predatory business practices. 

Belmora followed all prescribed requirements of the U.S. Patent and Trademark Office’s for registering the FLANAX trademark in 2005. Nothing material changed between that date and 2007 when the USPTO cancelled the registration except that Bayer had acquired the Mexican FLANAX trademark. Territorialty should have disqualified Bayer from using Lanham Act remedies. Instead, Bayer has not only been given access to those remedies but the rights of a Mexican trademark holder have been allowed to supersede those of a legitimate American trademark holder. In fact, Bayer’s defense of Mexican Flanax is just a pretense to eliminate our competition with Aleve.

Unless reversed by the Supreme Court, these court rulings and USPTO actions will open the floodgates to all sorts of mischief by state-owned and other foreign corporations intended to suppress competition from U.S. businesses in America!”  

We fight for the minority community in America.

Make no mistake about it. Bayer’s purpose is to drive Belmora out of business. Without competition from Belmora, Bayer would be free to raise the prices on its own analgesics. The Hispanic community has a comfortable familiarity with the product Flanax. It is entitled to a safe, and affordable product they know and trust and one that respects their culture by providing bilingual packaging and instructions. Dangerously, third parties are illegally importing the higher strength and unapproved Bayer Mexican Flanax into the United States. As a result, some users have suffered adverse effects that have been reported to the FDA.

 We fight for small businesses.

On July 9th of this year, President Biden issued an Executive Order directing all government agencies to protect U.S businesses against unfair competition against multi-nationals. We support that Order whose goals include increasing opportunities for small businesses, and which establishes a White House Competition Council, to coordinate the federal government’s response to the rising power of large corporations in the economy.

We fight for American jobs. 

Belmora Flanax is made and packaged in the United States. Bayer’s Flanax (and Aleve) is manufactured in Mexico.