Biomax = Metabiomax

von David Slopek

This decision made two interesting findings with regard to pharmaceutical trademarks. Firstly, the prefix “META” is a common element unable to attract consumer’s attention. Secondly, the high similarities between the signs and the products are sufficient to cause a likelihood of confusion without being necessary to assess the distinctive character of the prior trademark BIOMAX.

Background

This case concerns the Community trademark application METABIOMAX for products in classes 5, 16 and 30, which was opposed based on the prior Community trademark BIOMAX registered for products in classes 5, 30 and 32. Having regard to the goods covered by class 5, the OHIM Opposition Division acknowledged a likelihood of confusion in respect of “pharmaceutical products, dietetic substances for medical use, food for babies”. Upon appeal, the Board of Appeal endorsed that finding.

Decision

The General Court upheld the existence of the likelihood of confusion, thereby acknowledging the visual, phonetic and conceptual similarities arising from the reproduction of the verbal element “BIOMAX”. The court did not find it necessary to assess the distinctive character of the prior trademark. Moreover, according to the General Court, even though, the additional element “META” in the younger mark is situated at the beginning of the sign, this prefix will not attract the consumer’s attention more than the shared element “BIOMAX”, as “META” is a relatively common prefix.

Comment

This decision should be seen in light of two other decisions issued by the General Court on the same day regarding trademarks composed of the elements META and METABOL.

The first one is the decision in the case opposing the same METABIOMAX application based on the prior trademark METABIAREX (General Court, judgment of 11 June 2014 in Case T-281/13) ...

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