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SK&F, CO. v. PREMO PHARMACEUTICAL LAB.

No. 79-2823.

625 F.2d 1055 (1980)

SK&F, Co., v. PREMO PHARMACEUTICAL LABORATORIES, INC., Appellant.

United States Court of Appeals, Third Circuit.

Decided May 28, 1980.

As Amended June 12, 1980.

Attorney(s) appearing for the Case

David M. McCann, Carpenter, Bennett & Morrissey, Newark, N. J., Donald R. Dunner (argued), Michael C. Elmer, Charles E. Lipsey, Finnegan, Henderson, Farabow, Garrett & Dunner, Washington, D. C. of counsel; Alan D. Lourie, Janice E. Williams, SmithKline Corp., Philadelphia, Pa., for appellee SK&F, Co.

David B. Kirschstein (argued), Kirschstein, Kirschstein, Ottinger & Corbrin, P. C., New York City, for appellant Premo Pharmaceutical Laboratories, Inc.; Robert C. Podwil, Wolf, Block, Schorr & Solis-Cohen, Philadelphia, Pa., of counsel.

Nancy L. Buc, Chief Counsel, Kathleen A. Blackburn, Asst. Chief Counsel for Enforcement Food and Drug Administration, Rockville, Md. for Food and Drug Administration as amicus curiae.

Sanford M. Litvack, Sp. Asst. to the Atty. Gen., Barry Grossman, Roger B. Andewelt, Robert J. Wiggers, Lois Friedman, Attys., Dept. of Justice, Washington, D. C., for United States as amicus curiae.

Milton A. Bass, Sheldon S. Lustigman, Bass, Ullman & Lustigman, New York City, for Nat. Ass'n of Pharmaceutical Manufacturers as amicus curiae.

Before ALDISERT and GIBBONS, Circuit Judges, and POLLAK, District Judge.

OPINION OF THE COURT

GIBBONS, Circuit Judge.

Premo Pharmaceutical Laboratories, Inc. (Premo) appeals from an order prohibiting it, pending final hearing, from marketing a combination drug, Triam-Thiazide, an oral diuretic, in hard gelatin capsules having the same maroon and white color combination as the capsule used by SK&F, Co. (SKF) in marketing its product DYAZIDE, which contains the same combination drug. The order was entered in an action brought...

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