In a recent decision, the EU General Court upheld a decision that the trade marks NIMORAL and NEORAL are confusingly similar.
The decision is interesting because, in its finding of a likelihood of confusion, the Court gave little weight to the relevant public’s high degree of attention to the pharmaceutical goods at issue.
The Danish pharmaceutical company Azanta A/S had applied to register NIMORAL as a European Union Trade Mark in respect of pharmaceutical preparations for enhancing the effect of radiotherapy on cancer patients. The Norwegian pharmaceutical company Novartis AG opposed the NIMORAL application on the basis of its earlier EUTM registration for NEORAL, which was registered for pharmaceutical preparations. The Opposition Division and the Board of Appeal both held that there was a likelihood of confusion between the marks.
One of the issues that the Court focused on was the degree of attention that the relevant public would pay to the goods at issue. It indicated that the Board of Appeal was right to consider that the relevant public was composed of health professionals and, as end consumers, patients. The Court further indicated that the end consumers of the goods at issue were cancer patients, while the health professionals were doctors specialised in oncology and doctors specialised in the administration of radiotherapy to cancer patients. The Court agreed that the relevant public was particularly attentive to the goods at issue.
Azanta claimed that there was no likelihood of confusion as the degree of similarity between the marks at issue was low and the relevant public was particularly attentive. Azanta also claimed that, given the level of attention of the relevant public, it would be able to distinguish between goods with similar names.
However, the Court disagreed and indicated that, notwithstanding a high degree of attention, the relevant public only rarely has a chance to make a direct comparison between different marks and must rely on imperfect recollection. Therefore, the Court held that there was a likelihood of confusion on the basis that the goods were identical and the marks were similar to an average degree. The decision is important because it shows that if there is a situation where the goods are identical and the marks are similar to an average degree, imperfect recollection can outweigh the relevant public’s high degree of attention.