B9 10106. Gerecht EU, 9 september 2011, T-289/09 & T-290/09, Omnicare tegen OHIM / Astellas Pharma.
Merkenrecht. Oppositieprocedure o.g.v. nationaal woordmerk „OMNICARE” tegen de aanvraag tot inschrijving van de woordmerken OMNICARE en OMNICARE CLINICAL RESEARCH. Opposities toegewezen.
90-94. (…) It is clearly artificial, however, to claim to be able to conduct, in a general manner, ‘clinical and laboratory research in the field of pharmaceuticals’ and exclude urologists from the potential recipients of those services. It cannot be ruled out that clinical and laboratory research for certain pharmaceutical products, even if not medicinal products used in urology, may be of interest to urologists or influence their practice, since urologists cannot be excluded as a target group in larger-scale or horizontal research, for example, into cancer, infections, stem cells or gene therapy, as rightly pointed out by OHIM. (…) Consequently, it must be found that the Board of Appeal was right to conclude that the services at issue were similar, in spite of the limitation by the applicant.
95. OMNICARE: In conclusion, the Board of Appeal was thus right to consider, in essence, that the signs at issue were highly similar visually and phonetically and that they would be perceived as being conceptually identical by the relevant public, which is made up of experts in the medical and pharmaceutical professions in Germany.
OMNICARE CLINICAL RESEARCH: In conclusion, the Board of Appeal was thus right to consider, in essence, first, that the signs at issue were highly similar visually, second, that the phonetic similarity between them was average, and third, that, since they are made up of a common element, namely ‘omnicare’, they would be perceived as being conceptually identical by the relevant public, which is made up of experts in the medical and pharmaceutical professions in Germany.
The Board of Appeal was also right to consider that the services at issue were similar, at least to a low degree. Consequently, the Board of Appeal’s assessment must be approved in so far as it concludes that the relevant consumer in Germany would inevitably connect the marks at issue and assume that the services marketed under them came from the same or economically linked undertakings and, therefore, that there was a likelihood of confusion.
Lees de arresten hier en hier.
