Once more the General Court has confirmed that the relevant public in the field of pharmaceutical products – consisting both of medical professionals and patients – displays, in general, a “relatively high” level of attentiveness vis-à-vis pharmaceutical trademarks (judgment of 24 September 2014, Case T-493/12, Sanofi SA v. OHIM / GP Pharm SA). The General Court used the assessment of likelihood of confusion between the marks DELPRAL and GEPRAL as an opportunity to repeat this finding.
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In the past OHIM considered the level of attentiveness in relation to “medicines for minor disorders” such as painkillers to be very low, and this was in line with the former case law of the General Court. However, more recently, the General Court has held on several occasions that the level of attentiveness in the field of pharmaceutical products is high because they affect the consumer’s health. No distinction is made any longer by type of drug or therapeutic indication (see also for example judgments of 15 March 2012, Case T-288/08 and 14 July 2011, Case T-222/10). As a result, OHIM has adopted the same approach and actually changed its Guidelines on this point with effect from 1 February 2014 to reflect this (see here).
Generally assuming a “high attention” on the part of the relevant public when considering whether there is a likelihood of confusion between pharmaceutical trademarks of course tends to diminish the scope of protection of these marks. This is all the more true when an increasing emphasis is put on the therapeutic indication for a finding whether the products are similar to a high, medium or low degree. That said, in the case reported here, even though the Court found that the goods were only slightly similar, and in spite of the high level of attentiveness of the relevant public, the high visual and average phonetic similarity between the marks ultimately supported a finding of likelihood of confusion.