The Judgment of the General Court (Sixth Chamber) is worthy of consideration. From a trade mark perspective, it considers the relative importance (or lack of importance as it transpired) of the relevant public’s level of attention in the assessment of likelihood of confusion. From a healthcare angle, the relevant public were oncologists, radiotherapists and cancer patients.
The facts are straightforward. Azanta applied for an EU trade mark for NIMORAL in respect of “Pharmaceutical preparations for enhancing the effect of radiotherapy on cancer patients”. Azanta’s application was opposed by Novartis based on the earlier EU trade mark NEORAL covering “Pharmaceutical preparations”. The Opposition Division upheld the opposition on the basis of Article 8(1)(b) of Regulation No 207/2009. Azanta’s appeal was subsequently dismissed by the Fourth Board of Appeal of the EUIPO.
Dismissing Azanta’s further appeal, the General Court agreed with the Board of Appeal that the marks had an average degree of visual and phonetic similarity and that it was not possible to compare them conceptually. The General Court also confirmed that the goods covered by the marks at issue were identical; the earlier mark’s broad term “Pharmaceutical preparations” included the goods covered by Azanta’s application. Finally, the Board of Appeal’s finding that the relevant public was particularly attentive as regards the goods at issue was also confirmed.
In its appeal to the General Court, Azanta argued that there was no likelihood of confusion because the level of similarity between the marks was low and the relevant public was particularly attentive. Given that level of attention, the relevant public would distinguish between goods with similar names.
The General Court disagreed for two reasons:
- The fact that the relevant public consists of end consumers (cancer patients) who have an above-average level of attention is not enough to rule out a likelihood of confusion in circumstances where the goods are identical and the marks are similar (if only to an average degree).
- Even a very attentive public only rarely has the chance to make a direct comparison between the different marks and must rely on the imperfect picture of them in its mind.
The Board of Appeal’s conclusion that a likelihood of confusion existed could therefore not be called into question by the degree of attention of the relevant public alone, even if it was particularly high.
The EUIPO Opposition Guidelines (Part C, Section 2, Chapter 3.2) tell us that the relevant public for non-prescription pharmaceuticals is the general public, and for prescription pharmaceuticals is the general public and health professionals. For the latter, the Guidelines say that, in practice, the likelihood of confusion will be assessed against the perception of the general public, which is more prone to confusion. However, in the case of pharmaceutical goods targeted only at specialists for professional use (e.g. sterile solutions for ophthalmic surgery), the likelihood of confusion will be assessed from the point of view of that specialist public only. As such, it would seem that an applicant filing a trade mark for a product only used by healthcare professionals would be more likely to survive opposition.