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WEDNESDAY, 27 AUGUST 2014
General Court: FEMIVIA v FEMIBION

In Case T-324/13, the General Court reviewed the following opposition

Endoceutics, Inc. – CTM applicant

Merck KGaA - Opponent

FEMIVIA

FEMIBION

Class 5 Pharmaceutical preparations for the prevention and treatment of medical conditions related to the menopause

Classes 29, 30 and 5, namely ‘Pharmaceutical, veterinary and sanitary preparations; dietetic substances adapted for medical use, food for babies; plasters, materials for dressings; disinfectants; dietetic preparations on the basis of vitamins, minerals, trace elements, oils and fats, either apart or combinations thereof’;

the Opposition Division rejected the opposition in its entirety due to the lack of likelihood of confusion between the marks at issue inasmuch as the similarity of the signs at issue is primarily based on the prefix ‘femi’ which has a weak distinctive character for the goods covered by those marks.

The 4th Board of Appeal of OHIM upheld the appeal, annulled the decision of the OD and rejected the CTM application. In essence, there is a likelihood of confusion between the marks at issue on the part of the relevant Spanish-speaking public because of the identity of the goods, the average visual similarity and high degree of phonetic similarity of the signs, and the average degree of distinctiveness of the earlier figurative mark. As regards the prefix ‘fem’, it took the view that it would not be perceived as being descriptive for the goods in question.

The GC dismissed the action. Although it found that the prefix ‘fem’ will clearly be understood by the relevant Spanish-speaking public as being an abbreviation of the Spanish word ‘femenino’(meaning ‘feminine’), which describes the intended purpose of the goods in question, the Court held that does not mean that the prefix ‘fem’ cannot be taken into account when comparing the signs at issue. Thus, it confirmed the overall assessment of similarity of the marks and the risk of likelihood of confusion for identical goods .

Posted by: Laetitia Lagarde @ 15.01
Tags: General court, likelihood of confusion, femivia, femibion,
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