In The General Court has raised three interesting aspects in its decision of yesterday (case T-487/08) which dealt with the opposition involving the CTM application for KREMEZIN and the earlier WIPO trademark KRENOSIN.
The earlier mark covered ‘pharmaceutical, veterinary and sanitary product’ in class 5 and was under use obligation. When replying to the request of proof of use of the earlier mark, genuine use was established by the opponent in respect of ‘a sterile solution of adenosine for use in the treatment of a specific heart condition, being for intravenous administration in hospitals’. The Board of Appeal considered that the earlier mark had been used for “pharmaceutical preparations for the treatment of heart”.
Before the Court the General Court, the opponent criticized as this ‘excessively wide classification’ by raising that the mark had been used only for a single product and not for an entire range of goods. The Court confirmed the Board
findings and interestingly pointed out that in the pharmaceutical field the definition of sub-category is only defined by the therapeutic indication and cannot include the form, the active substance, the method and place of administration.
The Court added that, contrary to the Board’s assertions, the goods in question do not display a high level of similarity because ‘their therapeutic indications differ greatly’. Is this any step back as to the similarity of pharmaceuticals regardless of their therapeutic indications?
Lastly, the Court said that the level of attentiveness of the average consumer of pharmaceuticals depends on the therapeutic indications of the goods concerned (the more serious they are, the higher the level of attentiveness is). This contradicts some decisions (including from the General Court) applying a systematic high level without considering the specific aims of the pharmaceuticals.