The Supreme Administrative Court, by virtue of a judgment of January 18 2011 (case II GSK 56/10), dismissed a cassation complaint against a judgment of the District Administrative Court in Warsaw. That case resulted from a complaint filed by Novartis against a decision of the Polish Patent Office on dismissal of an opposition in respect of a trade mark registration in the name of Farmaceutyczna Spoldzielnia Pracy Galena. The judgment is final and valid.
On July 17 2006, the Polish Patent Office granted the right of protection to Polish company Galena for the word trade mark Trimegal, destined for pharmaceutical preparations in Class 5. An opposition was filed by Novartis, the owner of the trade mark Trileptal covering medicines, which claimed that there was a risk of misleading customers as to the origin of goods under the marks Trimegal and Trileptal. According to Novartis, the risk is caused by the following factors: the same kind of goods for which the marks are destined, the same character and the curative effect that the medicines will have upon patients, and the similarity between both designations.
On November 20 2008, the opposition was dismissed by a decision of the Polish Patent Office, and so was the complaint against the dismissal filed later with the District Administrative Court in Warsaw. Both the Patent Office and the District Administrative Court found no similarity between the marks Trimegal and Trileptal to the extent that there would be a likelihood of confusion on the part of the public.
The Supreme Administrative Court, having dismissed the cassation complaint filed by Novartis, confirmed the findings established in earlier proceedings by the lower instances. The Supreme Court held that an identical initial syllable Tri- constitutes a prefix suggesting customers that the product under the mark either consists of three components, or it works in three different ways, or has another property with triple character, and as such should not be taken into consideration during the comparison of marks.
The Supreme Court has also considered it essential that the marks in question are used on the market for different kinds of medicines: Trileptal is a medicine against epilepsy, while Trimegal is destined for the treatment of heart disorders. The Court decided that these are serious illnesses, and patients suffering from them are aware of the medicines which are prescribed for their treatment. The differences between the marks are sufficient to eliminate any risk of confusion and to ensure that both marks can function on the market without collision. An average customer of goods in Class 5, which are pharmaceutical preparations functioning in limited and rationed turnover, is not only well-informed, circumspect and observant due to the illness from which he is suffering and constant medical care under which he must remain, but in fact has no conscious choice between various medicines offered by different manufacturers.
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Anna Zakrocka |
Patpol
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