Greek trademarks committee rules GSK and GMK are dissimilar
Evangelia Sioumala of Patrinos & Kilimiris suggests some of the reasoning applied in a decision by the Greek Trademarks Administrative Committee is not in line with settled EU case law
In a recent opposition brought before the Greek Trademarks Administrative Committee (TAC), which is the competent body to decide on oppositions, the TAC considered whether a trademark, below right, seeking registration in classes 5 and 10 is confusingly similar to an earlier trademark, below left, registered in the same classes.
In its judgment in January 2024, the TAC made reference to settled EU case law; according to which, the overall assessment of the likelihood of confusion must be based on the overall impression given by the marks being compared, bearing in mind, inter alia, their distinctive and dominant elements (C-342/97, Section 18, and C-251/95, Section 22).
Nevertheless, even though the TAC found that the dominant wordsof the trademarks compared (“GSK” and “GMK”) are almost identical in that they consist of three letters, two of which are identical and reproduced in the same order, it concluded that they are not confusingly similar, as the addition of the word “medical” and a cross to the contested trademark suffice to exclude the likelihood of confusion.
Apparent points of divergence with settled EU case law
The ruling does not seem to be in line with settled EU case law; according to which, the difference in a single letter does not constitute a visual and aural difference in marks consisting of only three letters, two out of three of which are identical and in the same order (T-388/00, Sections 66–71).
Furthermore, by ruling that the addition of the word “medical” differentiates the trademarks, the decision contradicted settled EU case law; according to which, the word “medi” or “medical” is not capable of distinguishing goods in the pharmaceutical sector. In addition, the meaning of the word is immediately perceptible to the Greek consumer. The decision also ignored the fact that the presence of a cross is commonplace in the health sector and has become established for the identification of medical products.
With regard to the similarity of the products, although the TAC stated that both trademarks covered products in classes 5 and 10, it concluded that the opponent company operates in the field of medicines and vaccines, while the applicant markets medical devices, thus they are two undertakings with different activities and geographical coverage. The above reasoning is contrary to settled case law that geographical origin is not relevant for the finding of similarity of goods or services.
Finally, the TAC ruled that due to the nature of the products concerned (pharmaceuticals), the degree of attention of the relevant public is high, again contradicting settled case law (T-323/14, Section 77, and C-342/97, Section 18) that the relevant public’s level of attention being high is not, in any event, sufficient to rule out the likelihood of confusion.
The decision can be appealed, and it remains to be seen whether the above reasoning of the TAC will survive a more thorough examination by the higher competent body.