16 March 2023MedtechLiz Hockley

Novartis loses EU court bid to revoke inhaler trademark

Dispute relates to AstraZeneca's ‘Breztri’ brand | Court says no likelihood of confusion with earlier marks | Full details of reasoning.

Novartis has lost a bid to quash an AstraZeneca trademark for inhalers after the European General Court dismissed its action yesterday (Wednesday, March 15).

The dispute relates to  AstraZeneca’s ‘Breztri’ brand, registered as an EU mark in May 2018 for goods in class 5 of the Nice Agreement—“pharmaceutical preparations and substances”. The following year, Novartis attempted to have the trademark invalidated on the grounds of its own earlier EU trademarks, ‘Onbrez’, ‘Brezilizer’ and ‘Breezhaler’, designated for the same goods in class 5.

AstraZeneca’s ‘Breztri’ inhaler is used to treat diseases such as emphysema and bronchitis.

The EU Intellectual Property Office (EUIPO) rejected Novartis’ arguments in February 2021 and its appeal against the decision was dismissed. Now, the Luxembourg-based General Court has rebutted the Swiss pharmaceutical firm’s challenge to the ‘Breztri’ mark and ordered it to pay costs in this latest chapter of the dispute.

Opposition to the mark

Novartis challenged the decision of the EUIPO on a number of counts; the level of attention of the relevant public, the comparison of the signs, the enhanced distinctiveness acquired through use of the earlier marks ‘Onbrez’ and ‘Breezhaler’, and the global assessment of the likelihood of confusion.

The firm disputed the EUIPO’s finding that medical professionals and end consumers would display the same high degree of attentiveness to the products, and drew a distinction between the “level” and “quality” of attention.

Pharmaceutical products are often prescribed, Novartis said, and used particularly by children and elderly people whose level and “quality” of attention may differ.

Novartis also challenged the court’s findings over the similarity of the marks, pointing to ‘Brez’ being the dominant element of the signs ‘Brezilizer’ and ‘Breztri’, as it is positioned at the beginning.

No likelihood of confusion

In rejecting Novartis’ arguments, the court drew attention to consumers’ high level of attentiveness to the products at issue because they were pharmaceutical items that could affect their health. There was no evidence to suggest the level of attention of elderly people was lower than other consumers, the court said, and pointed out that it would be adults buying the goods for children so it was adults’ level of attention that was relevant.

Regarding the comparison of the signs, the court stressed that the marks needed to be examined as a whole rather than broken down into parts, and that the “marks at issue did not consist of word elements that have a meaning for the relevant public and that the public would not break them down”.

A low degree of visual similarity between ‘Breezhaler’ and ‘Brezilizer’ and the contested mark ‘Breztri’ was found, and any “coincidence” in the same letters in the words was “significantly weakened by differences between the marks at issue”, the judges concluded. This included differences in the length and spellings of the word marks.

Regarding the distinctiveness acquired through use of the earlier marks, the court found some faults with the examination carried out by the EUIPO Board of Appeal, but concluded that it had no bearing on the lawfulness of the final decision.

Evidence did not suggest the mark ‘Breezhaler’ had enhanced distinctiveness in the EU, the court said.

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