In case T-161/10, the General Court confirmed the BOA’s decision partly upholding the opposition against E-PLEX on the basis of earlier Portuguese trademark EPILEX for goods in Class 5-the relevant public is composed of professionals in the pharmaceutical and medical field as well as end consumers in Portugal and that the attentiveness of that public, at the moment of purchase, is above average.

As regards the goods, ‘anti-epileptics’ (protected by the earlier mark) and ‘pharmaceutical and veterinary preparations, except medicines to combat diseases in connection with the central nervous system’ are highly similar, that those ‘anti-epileptics’ and ‘dietetic substances adapted for medical use, preparations of trace elements for human and animal use, food supplements for medical purposes’ are similar to an average degree, and that ‘anti-epileptics’ and ‘vitamin preparations and mineral food supplements’ are of low similarity.

The Court also stated that the signs at issue are visually and phonetically similar to an average degree and that they are conceptually not comparable. Finally, it held that the inherent distinctiveness of the earlier mark is average.

Consequently, the Court confirmed that there was a likelihood of confusion for the goods which are highly similar. By contrast, it concluded that, for the goods that are similar to an average or low degree, the likelihood of confusion had to be excluded.