OHIM upheld the contested CTM application for FEMAGRO (displayed below) and the earlier opposed Community word mark FEMARA to be confusingly similar.
The contested application particularly covered “pharmaceutical products for female sexual dysfunction”. Use of FEMARA (submitted to use obligation) was evidenced in respect pharmaceutical against breast cancer…
The OHIM considered that although “FEM-” alluded to ‘femme’ (in French), ‘female’ (in English) and ‘feminine’ (existing under different spellings in several languages of the Union), there was no evidence that it would be understood as designating female patients in the pharmaceutical field. The signs being visually and aurally of an average similarity and some of the products being of high similarity, a likelihood of confusion was ruled.
That was quite a borderline case in our view. Congrats to NOVARTIS PHARMA AG (the Opponent) on winning this one!