The glowing green moth that advertises the sleeping pill Lunesta has become one of the best-known logos in the drug industry, gliding serenely across magazine pages, websites, and television screens.
Now a tiny nutrition-supplement company is trying to clip its wings, saying that the Lunesta moth is an illegal knockoff of its own butterfly logo.
Tharos Laboratories Inc., which sells herbal sleep supplements, says Sepracor Inc. of Marlborough deliberately snatched its idea for advertising a sleep drug. For evidence, they point to Tharos's butterfly, a winged blue outline that flutters across advertisements for its Nytex sleep supplement.
Tharos is asking a judge to block Sepracor from using its moth and to fork over any profits that it gained by using the logo.
The money at stake could be considerable. Lunesta's introduction last year was one of the top 10 new-drug launches in history, and sales are on track to reach nearly $600 million in 2006.
Lunesta is also the single most heavily advertised drug of the past two years, according to TNS Media Intelligence, which estimates that Sepracor has spent more than $400 million on ads so far. Earlier this year, the green-moth ads won two gold medals from a national drug-advertising trade group.
The suit hints at the massive value a good logo can bring to a product. It also highlights a change in the drug industry, that prescription drugs like Lunesta have a valuable logo at all.
"In the old days, you'd say a logo didn't really matter, because these things are prescribed by doctors," said Joan Griffin, a trademark lawyer with McDermott, Will, and Emery in Boston. "But if they're advertising it on TV, they're aiming it at consumers, and the logo matters."
Original or not, the Lunesta moth is already an advertising icon. Its design is based on the luna moth, a vividly colored nocturnal insect with no mouth and a lifespan of one week.
Its frequent appearances in magazines and on late-night television have generated both fans and detractors. One advertising survey found Lunesta to be the most memorable drug campaign of the past television season. It also won a "Bitter Pill" award from a group critical of drug advertising and has even generated a parody website where the glowing moth flutters through car crashes, surgery, and other incongruous scenes.
Far less well known is the Nytex butterfly. Its manufacturer, Tharos, is a private company that recently moved to Utah from Sharon. With fewer than 10 employees, it is dwarfed by Sepracor and its 2,500 employees. Nytex says it promotes sleep with a combination of metatonin, valerian root extract, and a patented ingredient called Procidin, "extracted from blueberries and grapes."
According to the suit, Tharos began using its butterfly logo in 2003, a year before Lunesta was approved. It applied to register the trademark in 2005. The suit points out that Lunesta's website, like Tharos's, has a "picture of a woman sleeping as its butterfly design mark crosses the webpage in a flying manner."
Tharos says the green moth and its blue butterfly have already caused confusion among potential customers. The Tharos suit in US District Court in Utah alleges trademark infringement, false advertising, and unfair competition.
Avaneesh Marwaha, Tharos's lawyer, said the facts clearly favor Tharos. "We believe the average person would not know the difference between a moth and a butterfly, and they've got it flying across the screen," he said.
A Sepracor spokeswoman said the company would not comment on the suit. But in its legal response, Sepracor says Tharos is hardly the first company to use a lepidopteran to advertise a drug or a supplement.
In asking the judge to throw out the suit, Sepracor also enters the realm of art criticism, dismissing the Tharos butterfly as an "abstract, metallic, colorless collection of lines and shapes" which "evokes two intertwined paperclips" as much as a butterfly.
By contrast, it says, Sepracor's design is "a silk moth (specifically, a luna moth) depicted in a lifelike manner, glowing with green luminescence."
The judge has not yet ruled on whether to dismiss the suit or allow it to proceed.
Tharos's lawyer said the company is still considering what it wants out of the deal.
Griffin, the trademark lawyer, says Tharos could face a tough road proving that a big green moth is causing confusion with its blue butterfly. "It really is in the eye of the beholder," she said.
Copyright 2006 Globe Newspaper Company
