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IP Cases & Commentary – Details

21 September 2010

PROCAPS and PROCAPTAN are Held to be Confusingly Similar - Procaps SA v OHIM (Case T-35/09)

Jeremy Pennant

An appeal from OHIM’s Board of Appeal to the General Court resulted in the ruling on 2 June 2010 that PROCAPS is confusingly similar to PROCAPTAN in respect of pharmaceutical preparations.  The Court concluded that the relevant public included ordinary consumers who might be confused as end users, notwithstanding any potential influence by a doctor when choosing prescription medicines.

The Court also disagreed with the Board of Appeal who had concluded that where marks consist of only a single word no dominant element could exist for comparison purposes when considering the similarity between two marks.  The General Court referred to earlier case law confirming that a word mark might contain a dominant element or syllable.

The earlier case of Mundipharma AG v OHIM and Altana Pharma AG held the mark RESPICUR (see our July 2007 newsletter) to be highly similar, at least for end users, to the earlier registration for RESPICORT.

Related links

July 2007 Trade Mark Newsletter: Article 1 - Looking Out for the "Average Consumer"...Do They Need This Much Protection?


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