Unfortunately, it is extremely improbable that any American manufacturer will market acetylsalicylic acid under the name aspirin, although we believe they would have a legal right to do so. The courts have held in related instances that when a patented article has been known during the life of the patent under a trademarked name, with the expiration of the patent the name as well as the product becomes common property. The classical “Singer Sewing Machine” decision and the lanolin case are in point. The Bayer Company, through a widespread newspaper advertising campaign, seems to be attempting to perpetuate its seventeen-year monopoly by leading the public to believe that there can be only one brand of genuine acetylsalicylic acid on the market—that made by the Bayer Company.
The firm will, of course, continue to manufacture and advertise the product under the name “Aspirin-Bayer,” and will probably charge high prices for it, as was the case with phenacetin (acetphenetidin). In any event, physicians hereafter should do what for a long time we have been advising should be done, namely, prescribe the compound under its scientific name, acetylsalicylic acid. They should do this if for no other reason than that they would be using the name which carries with it a reminder of the composition of the preparation. Of course, for those who have been writing “aspirin” it will be rather difficult to write “acetylsalicylic acid,” just as a quarter of a century ago it was difficult for the physician of that day who had been using the copyright name “antifebrin” to write “acet-anilid,” a name which nowadays is easy, even for laymen.—(Editorial from The Journal A. M. A., Jan. 20, 1917.)
“What’s in a Name?”
Under the caption “What’s in a Name?” the current (April) issue of the Journal of Industrial and Engineering Chemistry has an editorial dealing with the nomenclatures—common and proprietary—of acetylsalicylic acid. The editorial was prompted by an article by Dr. Leech printed in the same issue. Replying to its own question:
“The answer to this question so far as it applies to acetylsalicylic acid (popularly known as aspirin) is the difference between eighty-eight cents, the price the druggist must pay for every one hundred tablets of Bayer aspirin, and forty cents, the cost of an equally pure American product. Naturally, this difference in cost is passed on to the individual consumer.
“That no scientific justification exists for this difference in cost is clearly shown in the contribution by Dr. Paul Nicholas Leech, of the Chemical Laboratory of the American Medical Association, page 288 of this issue.
“On the other hand, the excess profit fully warrants the extensive and shrewdly-worded advertising campaign now in progress, a campaign which must eventually fail, because in the first place, it is contrary to the prevailing spirit of modern advertising, the motive of which is constructive rather than destructive, and, in the second place, it appeals merely to the temporary ignorance of the public at large, and has no basis in fact.
“We have been informed that the Custodian of Alien Enemy Property has taken charge of the stock interests of alien enemies in the company conducting this propaganda. Surely the Custodian will not care, even in a trustee capacity, to continue as a participant in a misleading campaign whose sole purpose is the perpetuation of a monopoly hitherto enjoyed under full patent protection.”
The article to which the editorial refers is a somewhat technical one giving the findings of an examination made, at the request of the Council on Pharmacy and Chemistry, in the Chemical Laboratory of the American Medical Association by Paul Nicholas Leech, Ph.D., of various American brands of acetylsalicylic acid (aspirin). The result of the investigation may be summed up briefly in the statement that there are on the American market, made by American firms, several brands of acetylsalicylic acid that are just as good as, if not better than, the Bayer product.
The Journal has called attention to the misleading propaganda on the part of the Bayer Company (Farbenfabriken vorm. Friedr. Bayer & Co.), in its attempt to perpetuate the monopoly granted under our inequitable patent laws. This is done by conveying the inference that the only pure acetylsalicylic acid on the market is that known as “Aspirin-Bayer.” Physicians should again be reminded of the facts in the case of aspirin: Practically no other country in the world, and certainly not Germany, the original home of aspirin, would grant a patent either on acetylsalicylic acid, itself, or the process for making it. The United States granted both! As a result no one in this country except the Bayer Company could for seventeen years manufacture or sell acetylsalicylic acid either under its chemical name or under any other name. Nor was it permissible for hospitals or individuals to import it. While the monopoly held, the American people were compelled to pay from six to ten times as much for acetylsalicylic acid as were the people of Great Britain, France, Germany, Austria-Hungary, Denmark, Holland, Norway or Sweden. At a time when American druggists were compelled to pay 43 cents an ounce for acetylsalicylic acid as aspirin, just across the border in Canada it sold for about one-third the price.