RULING OF THE EUROPEAN GENERAL COURT, 10 FEBRUARY 2015, ANGIPAX/aNTISTAX
The company LEHNING filed a Community trade mark application for ANGIPAX to designate “pharmaceutical, veterinary and sanitary products for medical use; dietetic substances for medical use; baby food; disinfectants; fabrics and material for dressings; material for dental fillings and for dental impressions; products for destroying vermin, fungicides, herbicides” in class 5.
The company BOEHRINGER INGELHEIM INTERNATIONAL (BOEHRINGER) lodged an opposition against the registration on the basis of its earlier Community trade mark ANTISTAX designating, in particular, the “pharmaceutical products” in class 5.
This opposition was dismissed and the dismissal confirmed by the Board of Appeal. The owner of the earlier trade mark subsequently lodged a new appeal for annulment of the decision.
The Court rejected the appeal, thus confirming the Board of Appeal’s analysis. It is particularly interesting to consider the following points:
- The relevant public concerned by the application for the trade mark ANGIPAX was considered to be made up of average consumers and healthcare professionals, and the level of attention of these two categories of consumers considered to be higher than average since the products at issue concern the healthcare sector and consumers are in general particularly cautious when making purchases in this sector.
- With respect to the comparison of the signs, the debate focused in particular on the comparison on a conceptual level.
The court confirmed the process of analysis carried out by the Board of Appeal in that:
- The first step of the analysis had been to examine the signs as a whole, which led to the conclusion that since both signs were devoid of meaning they could not be deemed to be conceptually similar.
- The second step of the analysis, rightly so and in accordance with well-established case law, had then been to analyse the signs by breaking them down in the same manner as an average consumer, while perceiving the trade mark as a whole, would break it down into “verbal elements suggesting a concrete meaning or resembling familiar words”.
It is in this context that attention was drawn to the conceptual differences between the prefixes and suffixes of the terms at issue. Indeed, with respect to the earlier trade mark ANTISTAX, the prefix “ANTI” means against or opposed to, while the suffix “STAX” has no specific meaning; whereas in the application for the contested trade mark, ANGIPAX, the prefix “ANGI” relates to blood vessels or to the condition of angina and the suffix “PAX” refers to the notion of peace in Latin, leading the consumer to believe that the product is aimed at calming angina.
This dual conceptual comparison of the signs allows the examiners and judges to evaluate the similarities and differences between the signs in a way which is as close as possible to the intellectual process automatically carried out by the consumers and of which they commit an image, however imperfect, to memory.
Contact : Marion LAPERRIERE