Now in its twelfth year, Class 46 is dedicated to European trade mark law and practice. This weblog is written by a team of enthusiasts who want to spread the word and share their thoughts with others.
FRIDAY, 6 JULY 2012
Who is an average consumer of healthcare products in Turkey?
The Trade Mark Directorate of the Turkish Patent Institute (“TPI”) rejected an opposition by Novartis AGto an application to register the sign “Novitas” in class 5, on the ground that there was no likelihood of confusion. Following an appeal by Novartis AG, the TPI Re-Examination and Evaluation Board assessed the likelihood of confusion, focusing on the argument of the applicant that the products bearing the Novartis and Novitas trade marks would be sold only upon medical prescription, which means that the average (target) consumers are healthcare professionals since end-users of the product do not make a choice when they buy goods issued on a doctor's prescription. According to the applicant the degree of attention of the healthcare professionals is higher than that of the ordinary consumer. Accordingly there will not be a likelihood of confusion.
The Re-Examination Board of TPI disagreed. It stated in its decision that the relevant public is not only healthcare professionals but also the patients, who are the end consumers of these pharmaceutical products. Even though the choice and purchase of the ultimate consumer is influenced or determined by healthcare professionals, there will be a likelihood of confusion since the end consumer is likely to be faced with those products. Therefore the Re-Examination Board allowed the appeal of Novartis AG on the ground that, although the degree of attention of both group of consumers is high, there would still be a likelihood of confusion considering the similarity between the trade marks, similarity of the goods covered and the well known status of Novartis trade mark.
In respect to the argument of the applicant that the word “Novitas” was in fact its name and would be used on products together with the trade mark of the product, the Re-Examination Board stated that the TPI does not assess the possibility of the use of the trade mark together with other signs but assesses the application as it is filed.
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