On December 15, 2010 (TOLPOSAN vs./ TONOPAN), the General Court considered that ‘muscle relaxant, medicines containing tolperison; muscle relax ant veterinary preparations containing tolperison’ had a low degree of similarity with an ‘analgesic which soothe pain, in particular for treating headaches and migraines’.
For the Court, the respective primary therapeutic indications of the goods at issue were different. These goods were regarded as coming from different sub-categories of medicines and as being not in competition with each other or interchangeable. The fact that they could be used simultaneously was not sufficient for considering them as complementary.
This decision does not reflect a radical change in the Community practice as to the comparison and = assessment of the similarity between two pharmaceuticals which have different therapeutic indications. The position of the General Court is actually – and unfortunately – part of a minor tendency of the Community case law.
Alongside with the arguments raised before the Court by the opponent, most of the decisions actually hold that pharmaceuticals having different therapeutic indications are similar as they have the same nature, purpose (solving/curing health issues), consumers (medical professional and patients) and distribution channels (typically pharmacies).
