On September 10th 2014, the General Court ruled that there is a certain degree of similarity between goods in class 5; pharmaceutical products, and goods in Class 10; medical devices in the case Micrus Endovascular LLC v OHIM. The applicant in the case, Micrus, was attempting to register the wordmark Delta for class 10 “medical and surgical devices, namely the microcoils used for endovascular surgery for the treatment of aneurysms”. Laboratórios Delta Ltd had opposed the registration based on their earlier trade mark rights in an international registration designating several EU countries covering goods in class 5 including “pharmaceutical products for children and patients” and a Portuguese trade mark registration of the same mark. Both the Opposition Division and the Board of Appeal upheld the opposition and Micrus further appealed to the General Court.
Micrus argued that the Board of Appeal incorrectly assessed the similarity of the goods in questions. They contended that the goods were intended for use only by brain surgeons- a highly specialised segment of the market. The General Court found that even though the relevant consumers were a narrow group, it could not be excluded that highly specialised surgeons would use pharmaceutical products before, after or during an operation.
The General Court ultimately held that “notwithstanding the different nature of the goods in question and the fact that there are differences between their distribution channels, the Board of Appeal did not err in finding that, by reason of their similar commercial origins and complementary nature, the goods at issue were — at least to a certain extent — similar for the purposes of Article 8(1)(b) of Regulation No 207/2009”. Practitioners should therefore be aware that going forward goods in Class 5 and class 10 are likely to be considered similar.