The errors of error testing: potential liability issues for medication error testing of pharmaceutical trademarks under U.S. law.

Medication error testing is increasingly popular for potential pharmaceutical trademarks. The FDA is close to introducing rules regarding such testing as part of a new pharmaceutical product's approval. Such tests, however, have not yet been verified and are often the origin of "false positives," i.e., indications of possible confusion that, in fact, are not likely at all. Pharmaceutical companies, therefore, often must interpret test results and proceed with a mark despite such results. This article explores the potential products liability that may arise from such testing and considers the impact of FDA guidance in this area.