On 17 October 2006, in the CALSYN vs/ GALZIN case, the European Court of First Instance (ECFI) confirmed that when assessing the risk of confusion between two pharmaceuticals trademarks the relevant public was composed of medical professionals and patients.
Though the level of public attention is high, the very high similarity between the signs and the similarity between the goods(calcium-based pharmaceuticals / treatment for the Wilson disease) led to a risk of confusion.
The ECFI expressly refers to its previous decisions TRAVATAN (Sept. 2005) and ALREX (Nov. 2005) and thus strongly reaffirms its position as to the public to consider. This ECFI case law should bind the OHIM as well as National Courts and Trademark Offices. The relevant public, when pharmaceutical products are exclusively administered by specialists with no possible use at home, has not been studied by the ECFI yet in any other matter.
However, we agree with the position of the OHIM in the AMAXA decision (July 2006) that in such cases patients should not be taken into account.