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IVES LABORATORIES, INC. v. DARBY DRUG CO.

No. 80-7314.

638 F.2d 538 (1981)

IVES LABORATORIES, INC., Plaintiff-Appellant, v. DARBY DRUG CO., Inwood Laboratories Incorporated, MD Pharmaceutical Company, Inc., Premo Pharmaceutical Laboratories, Inc., Rugby Laboratories, Inc., and Sherry Pharmaceutical Co., Inc., Defendants-Appellees.

United States Court of Appeals, Second Circuit.

Decided January 8, 1981.

Rehearing and Rehearing Denied February 25, 1981.

Attorney(s) appearing for the Case

Marie V. Driscoll, New York City (David C. Stimson, Egon E. Berg, Steven Baron, Rogers Hoge & Hills, New York City, of counsel), for plaintiff-appellant.

Peter T. Cobrin, New York City (Martin W. Schiffmiller, Kirschstein, Kirschstein, Ottinger & Cobrin, New York City, of counsel), for defendant-appellee Premo Pharmaceutical Laboratories, Inc.

Steven R. Trost, New York City (Bass, Ullman & Lustigman, New York City, of counsel), for defendant-appellee Inwood Laboratories Incorporated.

Robert V. Marrow, New York City (Salon, Marrow & Dyckman, New York City, of counsel), for defendants-appellees Darby Drug Co., MD Pharmaceutical Company, Inc., and Sherry Pharmaceutical Co., Inc.

Before LUMBARD, MANSFIELD and MULLIGAN, Circuit Judges.

Rehearing and Rehearing In Banc Denied February 25, 1981.

MANSFIELD, Circuit Judge:

Ives Laboratories, Inc. ("Ives") brought suit in the District Court for the Eastern District of New York against appellees, who are drug manufacturers and wholesalers, claiming that their manufacture and distribution of a generic drug using capsules identical in color, shape, and size to those long used by Ives in its equivalent trademarked product violated §§ 32...

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