Trade mark decision

BL Number

O/115/00

Decision date

23 March 2000

Hearing Officer

Mr M Foley

Mark

EMILVA

Classes

05

Applicant

Takeda Chemical Industries Ltd

Opponent

Solvay Duphar B.V.

Opposition

Sections 3(1)(a), 3(3)(a) & 5(2)(b)

Result

Section 3(1)(a) - Not pursued

Section 3(3)(a) - Opposition dismissed

Section 3(2)(b) - Opposition successful

Points Of Interest

• In comparing the two marks, the Hearing Officer was not prepared to disregard the common suffix VA, which evidence showed to be common to pharmaceutical names, on the basis that such an approach was considered to be at odds with the cited case law.

Summary

Opponents based their opposition on registration in Class 5 of the mark ENLIVA, in respect of pharmaceutical preparations and substances. The Hearing Officer found this to be an invented word of inherent distinctiveness, sharing enough phonetic and visual similarities with the mark in question to create a likelihood of confusion, particularly bearing in mind imperfect recollection and given that identical goods were involved. The opposition under Section 5(2)(b) therefore succeeded.

Opposition under Section 3(3)(a), based on potential consequences of the wrong medication being supplied due to confusion between the marks, was dismissed, the Hearing Officer concluding that the relevant issues fell to be decided under Section 5(2)(b).

Full decision O/115/00 23Kb