von David Slopek

The product appearance of a transdermal plaster is eligible to protection as a figurative mark for pharmaceutical preparations for the treatment of Alzheimer type dementia in class 5.


Novartis AG (“Novartis”) obtained an IR registration before the OHIM and national registrations in Japan, Germany and Benelux for a device trademark in relation to “pharmaceutical preparations for the treatment of Alzheimer-type dementia” in Class 5. The device trademark in question is the 2D shape of the relevant Alzheimer product called Exelon Patch consisting of a round shaped beige patch surrounded by fifteen light gray dots on a square transparent layer. The Exelon Patch is used by Alzheimer patients as the only product developed in the form of a patch to be applied on skin instead of oral route. In 2013, Novartis sought to register the appearance of the Exelon Patch as a device trademark in Turkey by designation under the Madrid Protocol. The Turkish Patent Institute (“TPI”) granted an ex officio refusal decision on the basis of Article 7(1)(a) of the Decree Law Regarding Protection of Trademarks. Article 7(1)(a) sets forth that signs which do not fall within the scope of Article 5 cannot be registered. According to that provision, a trademark may consist of all kinds of signs capable of being represented graphically or in similar means, published and reproduced by printing such as words (including personal names), designs, letters, numerals, shape of the goods or their packaging provided that the sign is capable of distinguishing the goods and services of one undertaking from those of another. Novartis appealed the ex officio refusal decision before the Re-Examination and Re-Evaluation Board (“REEB”) of the TPI, thereby mainly arguing that the subject trademark fell within the scope of Article 5 on the basis of both inherent and acquired distinctiveness ...

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