The French Trademark Office denied a risk of likelihood of confusion between the contested word French trademark for “ALLERGOR” covering “pharmaceutical and veterinary products; dietetic substances for medical use” in class 5 and the earlier opposed trademark for “ALLERGAN” covering identical products in class 5 (opposition proceeding OPP 09-2374).
The decision says that “ALLERG“ is spontaneously evocative of “allergy” and consequently has a weak distinctiveness in respect of pharmaceuticals as it would allude to their aim at fighting allergies. As the distinctiveness of the marks only arose in the ending parts of the marks, the Examiner upheld that ALLERGOR was not imitating ALLERGAN.
The opponent argued that ALLERGAN products actually had no anti-allergic properties and rose that this was reflected through the broad recitation of the products. The Office eluded the argument by pointing out that the opposition has to be strictly handled on the basis of the products specified under the two marks at hands without taking into account their effective, real or supposed use.
Isn’t a radical evocative still distinctive? The reasoning of the Office is quite short in here especially given that the signs are word marks, having just the same length and covering identical products – and this would just be reinforced depending on whether there are or not other trademarks of that same structure length with the sequence ALLERG. It also seems quite weird – legally speaking – to specifically announce from one hand that no account should be given to the supposed use made in practice of pharmaceutical products while on the other hand the Examiner is making guesses as to the properties in fighting allergies that the products of the marks may have. Let’s see if the matter moves to the Court of Appeal…