Due Diligence (15 page)

“Frankly,” he continued, “we have already done far more than I believe we should have. I have bowed to the senator's wishes on this matter. I assume we can count on your total discretion.” He slipped a card out of his vest and handed it to me. “You can call me at this number day or night. They will know how to reach me.

I reached for the door. “Thank you.”

“Good evening, Rachel.”

Chapter Fifteen

The word “brand” comes from the Anglo-Saxon
“boernon
,” which means “to burn.” The first trademarks were just that—markings burned into the hides of cattle and other animals, a practice traced back as far as ancient Egypt. During medieval times, trademarks became a symbol of responsibility as the powerful guilds of Europe required their members to each use a unique mark. That way a defective product could be traced back to its maker. A trademark was thus the highly personal symbol of a single worker: when his life ended, so did his trademark. By the middle of the twentieth century, however, it had metamorphosed into the multibillion dollar world of brand-name marketing—a world where a single word, such as Xerox or Corvette or Chanel or Kodak, can be worth hundreds of millions of dollars.

Like a piece of extraordinarily valuable property, a trademark must be guarded from theft and destruction. Few are more sensitive to this than the pharmaceutical industry. Indeed, the sorry experience of one drug company has become the textbook example of what happens when you don't protect your trademark. Back in 1899, the Bayer Company of New York began selling a patent medicine made from a drug known as acetyl salicylic acid. To help promote the medicine under a snazzier name, the company's marketing gurus coined the trademark “Aspirin.” For seventeen prosperous years, the Bayer Company sold acetyl salicylic acid under the trademark Aspirin throughout the United States. But when the patent expired in 1917, competitors flooded the market with their versions of the drug, all under the name Aspirin. The Bayer Company ran to federal court. Screaming infringement, it sought an order forcing its competitors to use another name to describe their version of the drug. Too little too late, announced U.S. District Judge Learned Hand, and in one swoop of the judicial pen, the trademark Aspirin became the common noun aspirin.

The pharmaceutical industry learned its lesson. These days, each company guards its own trademarks (such as Tylenol or NyQuil) with a pack of snarling attorneys. All of which told me that if Primax was a brand named coined by a pharmaceutical company, there was an excellent chance that the company had registered the name with the U.S. Trademark Office. Even if the drug itself was no longer in use, the trademark and its last known owner ought to show up in the federal Trademark Register.

It was the morning after my midnight limo meeting with Sherman Ross. I was seated in front of my computer terminal on the credenza, waiting for the computer to confirm that I had accessed the data banks containing information on each of the millions of trademarks in the Principal Register of the U.S. Trademark Office. When the computer advised that it was ready for my first trademark search request, I decided to warm up with a trademark I already knew about: Phrenom. According to Bob Ginsburg, Phrenom was the crown jewel of Chemitex Bioproducts. Just as important, it was the drug that had quite literally saved Armstrong Bioproducts in 1977. I typed in the letters P-H-R-E-N-O-M and pressed the ENTER key.

The screen went blank for a moment as the computer searched the trademark files, and then the following information appeared on the screen:

PHRENOM

INTLCLASS:5 (Pharmaceuticals)

U.S. CLASS: 18 (Medicines & Pharmaceutical Preparations)

STATUS: Renewed

GOODS/SERVICES: Pharmaceutical – Namely, an antiinflammatory preparation for the treatment of rheumatoid arthritis, osteoarthritis, juvenile rheumatoid arthritis. Generic name: Phenylpyrrole Sodium

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.”