EU General Court dismisses Bayer’s Aspirin trademark appeal
Trademarks covering Bayer’s branded Aspirin were at the centre of an appeal dismissed by the EU General Court yesterday.
Uni-Pharma, a manufacturer of drug delivery technologies based in Greece, applied to register a figurative mark with the European Union Intellectual Property Office (EUIPO) in 2013.
The Greek technology manufacturer sought to register the mark—which consists of the word element ‘salospir’ alongside a white tablet, in shades of green, white, and black—in class 5 to cover pharmaceuticals.
German pharmaceutical company Bayer lodged an opposition in 2014, relying on two earlier-registered marks in Germany and six in the EU.
A word mark for ‘Aspirin’ is registered in Germany (DD 618,274), as is a figurative mark depicting the same word (36,433).
In the EU, Bayer relied on six figurative trademarks which show combinations of colours, including green, white, and black, arranged in a particular way.
Bayer also relied on a non-registered German trademark for its branded Aspirin tablets. The box, in white, green, and black, features the word ‘Aspirin’ alongside a white tablet.
The Opposition Division rejected Bayer’s opposition in 2015, and the Fourth Board of Appeal dismissed Bayer’s appeal in 2017.
The board held that the applied-for mark was different to Bayer’s asserted trademarks, and also that Bayer had not shown its unregistered mark to be protected under German law.
At the General Court, Bayer said that the board had incorrectly assessed the similarity of the marks by using an erroneous determination of their distinctive and dominant elements.
The figurative elements in the mark applied for, particularly the combination and configuration of the colours green and white, have an independent distinctive character, the German company said.
The board had instead determined that ‘salospir’ was the dominant and distinctive element of the applied-for mark, and the colouring and tablet are “merely decorative”.
At the General Court, Bayer went on to argue that consumers perceive that particular colour combination as being associated with Aspirin, and produced two surveys in an effort to prove this claim.
Affirming the EUIPO’s finding, the General Court said that the size and central position of the word ‘salospir’ dominates the overall impression of the applied-for mark.
The court said that although the marks “certainly” share the same colouring, these shared features are not significant to offset the visual differences between the applied-for mark and Bayer’s earlier-registered marks.
Also, the court explained that the public pays “particular attention” to differences in pharmaceutical product names.
In relation to the surveys, the court said that their relevance in this context is limited as they are not capable of invalidating conclusions reached by the board. They also cannot show that figurative elements of a particular mark possess independent distinctive character, the court added.
On Bayer’s other arguments, which related to the reputation of its marks, the court concluded: “The reputation or recognition enjoyed by the earlier mark and the fact that the goods or services respectively covered are identical or similar are not sufficient for it to be found that there is a likelihood of confusion between the marks at issue.”
The General Court dismissed Bayer’s appeal and ordered it to pay the costs incurred by the EUIPO and Uni-Pharma.
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