In Case T-591/24 (Sandoz v EUIPO) before the EU General Court, the MARQUES Amicus Curiae Team acted as intervener on the side of the applicant Sandoz. During the hearing in Luxembourg on 3 March 2026, MARQUES was represented by Dr. Martin Viefhues and Jakub Słupski.

Opposition rejected

In this case, the opposition concerned the EUTM ARMUNIA, registered for contraceptives and the EUTM application ARYUNA, filed for tinctures for medical purposes and medicinal herbs.

The Opposition Division of the EUIPO had rejected the opposition on the grounds that there was no likelihood of confusion due to the differences between the conflicting trade marks. The Opposition Division had emphasised that the relevant public would be highly attentive as the goods affect their state of health.

Upon appeal, the Board of Appeal of EUIPO upheld the decision, likewise arguing, inter alia, that the goods in question are medicines and therefore attract an increased level of attention.

The opponent, Sandoz, filed an action with the EU General Court and pointed out that, to ensure patient safety, a different interpretation of the current case law must be applied. Assuming a high level of attention among consumers in the medical field would imply that a likelihood of confusion would often have to be denied. This, however, would not reflect reality as various documentations and studies show a high level of medication errors due to “sound-alike” confusion.

MARQUES intervention

Being asked by the opponent to intervene, MARQUES decided to have its Amicus Curiae Team participate in the case. As a rule, MARQUES intervenes in court actions only if a particular case raises a question of general importance for brand owners and if it can be assumed that the brand owners would have a common position on that question.

In this case, MARQUES identified an issue of general importance in the EUIPO’s unbalanced assessment, which focused on the level of attention of the relevant public while failing to take into account that the average consumer only rarely has the chance to make a direct comparison between different marks, and instead must rely on the imperfect recollection of them that he has kept in mind.

MARQUES took the position that the recollection becomes more imperfect as trade marks become more difficult to remember correctly. Pharmaceutical trade marks are often fanciful and complex, and therefore particularly hard to remember – as illustrated by a review of the trade mark register and the high rate of medication errors.

Against this background, the assumed (though not yet proven) high level of attention among consumers in the medical field needs to be balanced against the imperfect recollection of the earlier trade mark. A heightened level of attention offers little protection where the consumer does not realise that their recollection of the earlier trade mark is inaccurate.

At the same time, the level of attention as one of the factors playing a role in assessing similarity must be recognised as highly unstable and context-dependent: it’s different for particular situations (at home or in the drugstore, in a rush or in a calm setting), and even for particular individuals.

Therefore MARQUES argued that, if this factor is to be applied at all, the context in which the level of attention is being assessed must be clearly defined and related to the facts of the case at hand. The decision of the EUIPO Board of Appeal failed to properly anchor this assessment in the relevant context, and therefore its position that the level of attention of the relevant public is heightened was not sufficiently supported.

Decision awaited

The hearing lasted nearly two hours and resulted in an interesting discussion on legal points. The decision of the General Court is expected to be issued before the end of the year.

Thanks to Martin Viefhues for drafting this blog post and to Jakub Słupski for reviewing it. The photo shows a hearing at the General Court © European Union