The European Court of First Instance ruled on September 22, 2005, in TRIVASTAN vs./ TRAVATAN, that both professionals and end-consumers were the relevant public of pharmaceutical trademarks since medicine is delivered by professionals and then, a choice is made by the end-user in front of the medicine chest.
On September 26, 2005, the OHIM Board of Appeals considered, in a case involving the trademarks DAFLON and CAFON, that pharmaceuticals were prescribed by doctors and sold by chemists, and thus there was no choice of the consumer at the time of the purchase. The Board concluded that the risk of confusion of the consumer who is at home, was beyond the scope of the Community provisions.
In ALREX vs./ ARTEX (November 17, 2005), the ECFI also considered the end-user as part of the relevant public. The Court did not take a clear position as to the OHIM’s statement that the risk to health should not interfere in assessing the risk of confusion since the CTMR did not provide for it.
On May 4, 2006, in TANAKAN (vascular dilatator) vs./ TAVAXAN (ophthalmic pharmaceuticals), the OHIM Board of Appeals regarded the end-user as a part of the relevant public. The Board first noted that the goods were designed to treat minor disorders for which the degree of care of professionals and end-users is not as high as concerning treatments for serious diseases. The board then specified who were the end-users of the goods compared: mostly elderly people suffering from eye disorder and often hearing impairement. The physiological state of these consumers thus increased the visual and phonetic risk of confusion. What if the pharmaceuticals at issue were treating serious diseases? elderly people are also suffering from serious diseases. However the treatment is not particularly used by people with deficient visual or audition functions.
On July 18, 2006, the OHIM Board of Appeals confirmed this position. If the treatment covered by one of the trademarks is administered by specialists and cannot be used at home, the relevant public is constituted of specialists only who cannot confuse AMAXA for pharmaceuticals in the nature of genetic material and ALMAX to treat gastric hyperacidity.
To conclude, the relevant public of pharmaceuticals is constituted of professionals and end-users when the treatment in question can be taken at home. Moreover, the risk of confusion is higher when the treatment concerns a minor disease as the degree of care of professionals and end-users is not as high as when serious diseases are at stake. Lastly, the risk to health is not a relevant factor. In this context, we await with interest the ECFI decision in GALZIN vs./ CALSYN which is expected in about 6 months.