On April 26, 2006, the European Court of Justice confirmed the likelihood of confusion between these two marks by focusing the public to consider. According to the ECJ, the risk of confusion is assessed at the time of purchase and not in front of the medicine chest.
Nevertheless the relevant public includes end-users, doctors and pharmacists. End-users purchase the product and have their own perception with an ability to express their preference even if the products are sold on prescription. The distinction between availability on prescription or over the counter is thus reduced by the Court.