Jazz takes issue with nutrition company’s trademark

Jazz Pharmaceuticals has opposed a US trademark applied for by a nutrition company to cover dietary supplements in class 5.

Jazz filed its opposition to the trademark ‘ZEN R.E.M.’ on Wednesday, August 1 at the Trademark Trial and Appeal Board, claiming that the applied-for mark is too similar to trademarks covering its drug Xyrem (sodium oxybate).

Manufactured by Jazz, Xyrem is a drug used to treat two common symptoms of narcolepsy: cataplexy (sudden loss of muscle strength) and excessive daytime sleepiness.

Jazz has registrations for ‘Xyrem’ in class 5, 16 (for printed materials concerning medicine) and class 10 (drug delivery devices). It has also registered marks including ‘Xyrem Patient Success Program’ and ‘Xyrem Careconnect’, both of which are used to cover telephone support services.

Nebraska-based Red H Nutrition applied for the ‘ZEN R.E.M.’ mark in November last year, and it was published in April.

According to Jazz, dietary supplements are closely related to the goods and services covered under the ‘Xyrem’ marks—the biopharmaceutical company explained that there are currently 7,698 third-party applications and registrations that are live on the register that include both “pharmaceuticals” and “supplements” as goods or services.

“Further, R.E.M. is an acronym for “rapid eye movement”, which is a phase of sleep when your brain and body are energised and dreaming occurs. Xyrem branded products treat sleep disorders,” said the opposition.

Jazz also claimed that both trademarks end with the identical letters ‘REM’ and sound, and both begin with a ‘Z’ sound, similarities which “stimulate recall of and likely confusion” with Jazz’s trademarks.

The opposition added: “The likelihood of confusion … would be particularly damaging to opposer, and the public as a whole, because the consequence of any likelihood of confusion is potentially quite serious in the field of pharmaceuticals and medical compositions.”

This isn’t the first time that Jazz has sought to protect its Xyrem marks.

In August last year, LSIPR reported that Jazz had filed an opposition against Novartis’s application for the mark ‘Zibitro’, which covers class 5.

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