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21 November 2019Big PharmaSaman Javed

EU General Court sides with Merck in TM opposition

A German individual has lost an appeal before the tribunal of the  EU General Court, after his trademark registration was opposed by Merck.

In a  decision today, November 20, the tribunal said Stefan Werner could not register a figurative mark for the word ‘Floramed’ because it was too similar to an earlier trademark owned by  Merck.

In April 2016, an individual named Manfred Scheffler submitted an application to register the mark in classes 5, 29 and 30 for goods including health care products, food supplements for medical or other purposes, special dietetic foods for special medical purposes, dietary foods for non-medical purposes and dietary foods in the form of non-medical beverages.

In October that year, Merck filed an opposition based on its earlier trademark ‘Mediflor’ which is also registered in class 5 for goods such as dietetic substances for medical purposes, herbal preparations and medicinal plants, herbal teas and medicinal teas and infusion plants for medical purposes.

In 2017, the mark was transferred to Werner. Shortly after, the EU Intellectual Property Office’s Opposition Division upheld the opposition on the ground there was a likelihood of confusion between the earlier trademark and applied-for mark. Werner appealed, but the Board of Appeal upheld the decision.

In its decision, the tribunal said the Board of Appeal did not err in its finding that the applied-for mark and earlier trademark consisted of two almost identical elements, namely ‘med’ or ‘medi’ and ‘flora’ or ‘flor’.

While Werner had argued that the reverse order of which these elements appeared in both marks made them sufficiently different, the tribunal said this was not sufficient to exclude a risk of confusion.

It said the Board of Appeal “rightly concluded” that the goods covered by the applied-for mark, such as “healthcare products, special dietetic foods for special medical purposes, special foods for persons undergoing special physiological conditions”, were highly similar or identical to the “dietary substances for medical purposes; herbal preparations and medicinal plants herbal teas and medicinal teas, infusion plants for medical purposes”, covered by the earlier trademark.

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