KREMEZIN and KRENOSIN: Likelihood of Confusion
On 16 June 2010 the General Court issued its judgment in Kureha Corp v OHIM, concluding that there exists a likelihood of confusion between the trade marks KREMEZIN and KRENOSIN in respect of pharmaceutical products.
Kureha Corp argued that the opponent, Sanofi-Aventis AS, had not provided proof of use within the time limit set by OHIM in the initial opposition proceedings. The General Court confirmed that OHIM may invite the parties to file observations as often as it deems necessary and, in addition, to take into consideration, if relevant, evidence communicated by the parties out of time.
Kureha Corp also sought to have Sanofi’s rights limited on the basis of the proof of use. The General Court confirmed, however, that whilst pharmaceutical preparations constitutes a broad category within which it would be possible to identify a number of subcategories, the proposal put forward by Kureha Corp was unacceptable. They had argued for a limitation of Sanofi’s mark to “a sterile solution of adenosine for use in the treatment of a specific heart condition, being for intravenous administration in hospitals”. This definition was not held to be compatible with previous case law (see RESPICUR (see our July 2007 newsletter)). Paragraphs 58-61 of the judgment confirmed that the subcategory of goods identified by the Opposition Division, namely “pharmaceutical preparations for the treatment of the heart”, must be approved as, first, it is based on the therapeutic indication of the goods at issue and, secondly, it is sufficiently broad not to undermine Sanofi’s legitimate interest in being able, in future, to extend its range of goods or services while enjoying the protection which registration of that trade mark confers on it.