REG. NO.: 1,214,321
REGISTERED: November 1, 1974
FIRST USE: June 1,1974
FILED: June 1, 1974
ORIGINAL REGISTRANT: Armstrong Bioproducts, Inc., St. Louis, Missouri, USA
ASSIGNEE: Chemitex Bioproducts Corporation. St. Louis, Missouri, USA Recorded: December 29, 1987 Brief: Acquisition effective December 17, 1987
LAST LISTED OWNER: Chemitex Byproducts Corporation, St. Louis, Missouri, USA
I read through the information to familiarize myself with the format. Most of it was unexceptional, although I noted with curiosity that Armstrong Bioproducts had filed and obtained the trademark registration for the name Phrenom in 1974, which was three years before the FDA issued its final approval for the drug. According to Bob Ginsburg’s explanation of the FDA approval process, the drug would have been in the late stages of preliminary testing or the early stages of human testing when Armstrong Bioproducts registered the Phrenom trademark. Then again, that only underscored the importance of the trademark: years before the drug was approved, Armstrong Bioproducts had already secured its rights in the name.
I pushed the PRINT SCREEN button.
“Rachel?”
I turned away from the credenza. Jacki was standing in the doorway with a forlorn expression on her face and one of her black pumps in her hand. I looked closer. The shoe was missing the heel, which was in her other hand.
I leaned back from the computer and gave her a sympathetic sigh. “Oh, Jacki, another one?”
“I can’t stand it,” she said, her lips quivering. “This is the fourth time in three weeks.”
I looked back at the computer screen for a moment and then at my secretary. The trademark search could wait. “Come on,” I said. “Let’s talk.”
“No, you’re busy.”
I gave her a mock stern look. “Come in here, Jacki.”
She padded in barefoot and took a seat across the desk from me. Looking down at the broken heel, she shook her head. “I paid seventy-five dollars for these pumps. You’d think that when you pay that kind of money you’d be buying quality.”
I didn’t have the heart to tell Jacki that when you’re six feet three inches tall and weigh 240 pounds, it isn’t enough to pay for quality in your pumps. You also need to pay for space-age alloys and industrial-strength epoxy.
I mulled it over for a moment. “Look,” I said, leaning back in my chair and holding up my feet. She frowned at my shoes, which were simple black leather flats.
’You’re in law school, Jacki. Someday you’re going to be a professional. A professional, uh, woman. Being a woman is hard enough. Being a woman attorney is even harder. You’re going to have to work at making people take you seriously. That means you’re going to have to dress like a woman, not a bimbo.”
“A bimbo?” she said with a pained expression.
“Look at me. I’m five feet seven. If I don’t need heels for height, you surely don’t. Save your pumps for when you go out at night. They’re too uncomfortable to wear around the office anyway. Believe me, you want to be comfortable at your job.” I leaned forward with a reassuring smile. “Go over to Pappagallo on your lunch hour. Get yourself a nice pair of flats. They’re classy, and you’ll love them.”
She stood up, her eyes watering. “I’ll do that.” She paused at the door and turned back. “I want to be a woman, not a bimbo.”
“I know you do. Don’t feel bad, Jacki. Remember, the rest of us got to start off as girls. We had mothers or older sisters to teach us what to wear and how to dress and how to act. You didn’t. You’ve been at it for just a month. You’re doing fine.”
She straightened her back. “If you see me in anything bimbolike, please tell me.”
I was tempted to mention her makeup, which she apparently applied with a trowel, but I recalled how embarrassed she was by her five o’clock shadow, which usually arrived three hours early. She used the makeup to conceal her whiskers. So instead, I nodded. “You’ve got a deal, Jacki.”
“Thanks.” She returned to her desk to work on the interrogatories I’d given her earlier in the day.
Smiling, I turned back to the computer screen and typed in a new search request: PRIMAX. I pressed the ENTER key and waited as the screen went blank. After a moment, the computer informed me that it had found three registrations for Primax. After running through a 1963 registration for a car wax and a 1992 registration for a saw blade used with concrete and core drilling machinery, I called up the third Primax registration:
PRIMAX
INTL CLASS: 5 (Pharmaceuticals)
U.S. CLASS: 1 8 (Medicines & Pharmaceutical Preparations)
STATUS: Canceled
GOODS/SERVICES: Pharmaceutical – Namely, an antiinflammatory preparation for the treatment of rheumatoid arthritis, osteoarthritis, juvenile rheumatoid arthritis. Generic name: Primillamine acid
REG. NO.: 1,214,328
REGISTERED: November 1, 1974
FIRST USE: June 1, 1974
FILED: June 1, 1974 CANCELED: May 8, 1975
Reason: Request of registrant.
ORIGINAL REGISTRANT: Armstrong Bioproducts, Inc., St. Louis, Missouri, USA
LAST LISTED OWNER: Armstrong Bioproducts, Inc., St. Louis, Missouri, USA
I leaned back in my chair and frowned at the screen. I glanced over at the Phrenom information I had printed out. Armstrong Bioproducts had filed its trademark applications for Phrenom and Primax on the same day, June 1, 1974. Almost a year later, it had canceled the Primax registration.
I printed out the information and typed in a request for all trademarks registered to Armstrong Bioproducts or Chemitex Bioproducts. The search located twenty-seven other trademarks. Twenty-three were still active, four were canceled. The four canceled trademarks were Depran, Enval, Immunin, and Zepronal. Each was the name of a different type of drug: Depran was the name of an anticoagulant, Enval a salve for eczema, Immunin a platelet inhibitor, and Zepronal a diuretic. I compared the product descriptions of the company’s twenty-three active trademarks. For two of the four, the company had another trademark for a drug whose description was precisely the same as the one for the canceled trademark. For the other two, there was no overlapping product description among the active trademarks.
I leaned back in my chair, trying to make sense out of the trademark puzzle. There could be a benign explanation for those four canceled registrations. And for Primax. In the situation where there was only one trademark for a particular product description and that trademark registration had been canceled, it could be that the company registered the trademark while its new drug application was pending before the FDA, but thereafter the FDA refused to approve the drug. Where there were two trademarks for the same product description, one of which was subsequently canceled, it could have been that the company registered both names because it couldn’t decide which it liked better. After the FDA approved the drug, the company chose one name and discarded the other.
Presumably, there were other explanations as well, some benign and some ominous. Was Primax just the abandoned brand name for what became Phrenom?
I frowned at the screen. It was getting even more confusing.
Jacki buzzed on the intercom line to tell me that Benny Goldberg was on line one. She was giggling as she told me. I lifted the receiver. “Are you harassing my poor secretary?”
“I beg your pardon. We were having a medical discussion on the salutary effects of female hormone injections.”
“In English, please.”
“I asked her if she’d started growing tits yet.”
“Benny, that’s horrible.”
“Hey, what’s the big goddam deal? I’ve started growing them, too, for chrissakes, and I’m not taking any hormones.”
“That’s because you need to lose some weight.”
“Real sensitive, Miss Buns of Steel.
And anyway, never underestimate the raw sexual stamina of a full-figured man.”
“Speaking of which,” I said with a smile.
“Huh?”
“So?”
“So?” he repeated. “What’s that supposed to mean?”
“It means ‘tell me.’”
“Tell you what?”
“Tell you what?” I mimicked. “Come on, Benny. For starters, tell me what you did to my sweet, shy, defenseless girlfriend.”
“Flo and I had a very pleasant time.”
“Um-hm,” I said, grinning. A flustered Benny Goldberg was such a rare event that I couldn’t resist. “A little more specific, Professor.”
“I told you, we had a very pleasant time.”
“Come on, Benny. We’re buddies. You can tell me.”
“Tell you what?”
“You know.”
“No, I don’t know.” He was struggling to remain dignified. “What is it you want to know?”
“Well,” I said demurely, “for starters: did you guys do it?”
“I cannot believe this.”
“Is that a yes?”
“No. Absolutely not.”
“Really?”
“Really.”
“My, my,” I said in wonder. “I guess it must have been the novelty of being with a woman your own age.”
That put him into his Jackie Gleason mode. “One of these days, Rachel…to the moon!”
We both laughed.
“Isn’t she great?” I asked.
“Definitely. We went over to the bar at the Hotel Majestic and talked until midnight.”
“Is she staying around another day?”
“I wish. She’s driving over to the east side this morning to research her story and then she’s flying back to D.C. tonight.”
“When are you going to see her again?”
“I told her I might go up there to visit in a few weeks. Once I get the exams graded.”
“That’s wonderful.” I was genuinely delighted, for Benny and for Flo. Especially for Benny, whose idea of the perfect mate too often seemed to be a dumbed-down, underage version of a Dallas Cowboy Cheerleader.
“Yeah,” he grudgingly agreed. “So tell me about last night. Is Armstrong going to help you?”
“A little,” I said. I described my meeting with Armstrong and Ross down at the television station and my subsequent meeting with Ross in the limo in my driveway.
“Fucking politicians,” Benny said in disgust.
“I can sort of understand their concerns,” I said. “Ross is putting on the brakes. I got the sense that Armstrong was more eager to help, but Ross is the one keeping his eye on the prize.”
“Don’t be naive, Rachel. Both of them have their eye on the goddam prize. Armstrong wants to be president at least as much as Ross wants to be chief of staff.”
“I’m not giving up on them. Ross told me he’s pulled some levers behind the scenes. He said to give it a couple weeks’ time. I’ve got nothing to lose.”
“True.”
“Listen to what I found,” I said, gathering the trademark printouts and my notes. I explained what I had discovered about Primax and the other trademarks.
“What’s it all mean?” he asked when I was through.
“I’m not sure, yet.”
“What about Guillain-Barré? Do one of those other drugs cure it?”
“I don’t think so,” I said, “but I’m not sure. I thought at first that Primax might be the one, but it looks like it’s another arthritis drug. In fact, it sounds almost the same as Phrenom. And maybe it is. Maybe they registered two names for the same drug and later decided to go with Phrenom.”
Benny said, “If your theory is right about the lag time between the name and the FDA approval, you need to look at the FDA files. That’ll tell you a lot more about Primax.”
“Good idea. Do we know any good lawyers in Washington, D.C.?”
“We know someone even better.”
“Who?” I asked.
“A brilliant reporter with a law degree and a great set of knockers.”
“Ah, yes,” I said with a smile. “She’ll be back in D.C. tonight, right?”
“Right.”
“Benny, would you do me a really big favor?”
“Anything, my dear.”
“Would you be a love and give Flo a call tonight to see if she could help us out over at the FDA?”
“It would be my pleasure, Rachel.”
“You’re sure I’m not imposing, Benny?”
“Not at all, my dear. Not at all.”
Chapter Sixteen
When the going gets tough, the tough go shopping. At least I do.
At four-thirty that afternoon, fed up with trying to unravel the Primax puzzle and the rest of Bruce Rosenthal’s due diligence jottings, I left my office, hopped in the car, and headed west to Town and Country Centre, my favorite shopping mall in metropolitan St. Louis.
I realize, of course, that the very notion of a glitzy suburban mall with glassed-in elevators and piped-in music might seem to be anathema for someone educated near the ten-ring circus of Harvard Square and trained in the flamboyant urban funk of Chicago, but I can’t help myself. When I’m feeling blue, nothing beats a couple of hours in a sunny mall with cascading waterfalls, hanging sculptures, lush floral plantings, patterned marble floors, dramatic skylights, food courts, espresso bars, a Bloomingdale’s, a Saks Fifth Avenue, a Famous-Barr, three bookstores, and dozens of specialty shops.
I know, I know. Call me an embarrassment to the Ivy League, but don’t forget to call me when Banana Republic has a sale. Which, in fact, they did. Forty percent off on leather bomber jackets, thirty percent off on hiking shorts, fifty percent off on selected jeans. Such deals! Such bargains! What a pleasure it was to concentrate on denim and khaki after a steady dose of Guillain-Barré syndrome, Phrenom Injection, and the Principal Register of the U.S. Trademark Office.
I didn’t zero in on him until I was having dinner at Pizzeria Uno’s in the upstairs food courtyard around six-thirty. I had turned to gaze out the window toward Athlete’s Foot and Blockbuster Music across the way when I saw him. He was standing in the smoking area over by the interior mall entrance to Saks. I studied him carefully. He was tall and lanky, with longish red hair that was parted in the middle and fell over his forehead. He was dressed in black—tight black jeans, a black leather jacket over a black T-shirt, black boots.
With a tiny shiver of recognition, I realized that I had seen him more than once over the past couple hours. He had been outside Banana Republic peering in through the window while I was trying on jeans. He had been leaning against the glass wall of Talbots and leafing through a magazine when I came out of the Mrs. Field’s with a chocolate chip cookie. Later, he drifted into the National Geographic store when I was in there mapping out my fantasy trip to Belize.
I chewed on a slice of pizza as I stared at him. He was wearing dark aviator sunglasses and smoking a cigarette. He seemed to be observing me, but it was hard to tell with the sunglasses. As I watched, he turned slowly and strolled away. By the time I finished my meal and paid the bill, he was nowhere in sight.
I was edgy, and I was angry with myself for being edgy. After all, I had nothing to be defensive about. I wasn’t wearing a micro-mini or a tiny tube top or spiked hair or thigh-high leather boots. I was just an ordinary shopper, wearing a fleece gray cowl-neck chemise, a black belt, black stockings, and sensible black flats. Out of all the comfortably dressed women browsing through the mall with a shopping bag in each hand, how was it that I got picked out by my very own rebel without a cause? He was probably lurking out there right now, lighting up another Marlboro and practicing a semiarticulate opening line.
The hell with him, I said to myself as I headed down the corridor toward
the garden courtyard area and my favorite store, Graphic Traffic. Fifteen minutes later, I had forgotten about him as I moved around the store, looking at the wearable art and handpainted crafts with a blend of enchantment and envy—enchanted by the creations, envious of the creators’ talents.
But when I stepped back out, there he was, over near the escalators by Maverick Jewelers. I turned in the other direction and walked rapidly down the main corridor in the direction of Bloomingdale’s, took the escalator up to the second level, and ducked into the Barnes & Noble. I walked back to the mystery section and turned into the aisle between the bookshelves, my heart still racing. Killing time and trying to get calm, I pulled out a paperback edition of Grisham’s The Pelican Brief. I studied the cover photo of Julia Roberts. I thought back to how wonderful she had been in Mystic Pizza, still one of my favorite movies. I turned it over and looked at the picture of John Grisham. I didn’t get the point of the unshaven look: if you’re going to go to all the trouble of getting dressed up and traveling to the studio to pose for your portrait, who’s going to believe you forgot to shave? I put the book back in the shelf—I had long ago vowed to avoid suspense novels written by attorneys.
I checked my watch. I’d been in the bookstore for ten minutes. I moved to the front of the store and, feigning a casual attitude, I strolled out and down the corridor toward Famous-Barr. No sight of him. I paused at the entrance to Victoria’s Secret, wondering whether there really were women out there who thought in terms of matched sets of underwear. I told myself that I probably moved in the wrong circles.
I slowly turned 360 degrees. No sight of him.
Feeling better, I continued down the corridor and went into Abercrombie & Fitch. Immediately I was back to planning my fantasy vacation to Belize. As I pretended to select the appropriate tropical outfits, David Marcus unexpectedly popped into my thoughts. I thought how wonderful it would have been to go to Belize or Costa Rica with David, and immediately a wave of sadness washed over me. Blinking back the tears, I turned to leave.
That’s when I spotted him. He was inside Abercrombie & Fitch, two rows over, trying on safari hats. I left the store and moved hurriedly toward the escalator. Halfway down I looked back. He was leaning on the railing overlooking the escalators.
Due Diligence Page 15
