brings you lot a UK Trade Mark Registry conclusion involving everyone’s favourite pharmaceutical, emphasising the importance that aural similarity tin play where goods are ordered past times phone. Glenside applied to register BI-AGRA inward Class 1 for diverse agricultural chemic products in addition to fertilisers. Pfizer opposed the application, based on its before VIAGRA mark, which was registered for diverse industrial chemicals, also every bit chemicals used inward the pharmaceutical industry, arguing that in that place was a likelihood of confusion betwixt the ii nether s.5(2)(b) of the UK Trade Marks Act, especially because of the high bird of aural similarity betwixt the two. Glenside countered that the outset letters were different, in that place was a hyphen inward its score in addition to that ii marks were conceptually different, pregnant that in that place was no likelihood of confusion.
The opposition was successful:
♦The goods were identical or closely similar since the goods that the score were applied for were included inside Pfizer’s registration.
♦Pfizer’s VIAGRA score was an invented discussion in addition to thus was highly distinctive, fifty-fifty though no exercise of it had been made inward relation to Class 1 goods.
♦There was a express amount of visual similarity betwixt the ii marks. Both marks were composed of 6 letters in addition to had the final 5 inward common. However, the different outset missive of the alphabet was readily apparent on the printed page in addition to the number of the hyphen inward splitting Glenside’s score inward ii could non survive ignored.
♦Aurally in that place was a high bird of similarity betwixt the ii marks. The departure betwixt a “b” in addition to “v” audio is slight in addition to the ii would survive hard to distinguish allowing for normal imperfections of speech. While precise in addition to careful joint powerfulness emphasise the departure betwixt the ii marks, this was unlikely to plough over off inward a normal trading situation. Moreover, reverse to Glenside’s contention, according to a normal blueprint of speech, in that place would survive no interruption betwixt the elements of BI-AGRA.
♦The seat on conceptual similarity was broadly neutral. BI is non an accepted abbreviation for biological in addition to piece it tin hateful two, this pregnant had no obvious significance inward relation to the residuum of the mark. AGRA may or may non survive taken every bit alluding to agriculture. However, the betoken was of express importance because consumers practise non approach marks inward the spirit of analysis. They are unlikely to dissect such marks. On the whole, conceptual considerations are less of import amongst invented words of this form than they would survive inward the example of marks consisting of or made upward from known lexicon words.
♦The goods were industrial consumable items probable to survive sold inward large quantities (e.g. 1 of the products was sold inward eighteen litre containers) in addition to thus could survive the discipline of telephone ordering in addition to re-ordering past times farmers, rather than past times personal visual inspection. Thus, fifty-fifty if they were sold on a business-to-business solid soil to informed in addition to knowledgeable consumers, oral ordering would play a large role inward the sales process.
♦There was a likelihood of confusion. Confusion tin survive flora on the solid soil of aural similarity lone (or, inward other cases, conceptual or visual similarity alone). Here the fact that the goods would survive ordered past times telephone meant that aural similarity was especially of import in addition to this, together amongst the fact that the before score was highly distinctive in addition to the goods were identical or really similar meant that in that place was a likelihood of confusion nether s.5(2).
says that although this example doesn’t nation much that wasn’t said inward the ECJ’s Lloyd/Loint’s case, it is a reminder that non all of the “holy trinity” of visual, aural in addition to conceptual similarity involve to survive introduce inward a case, in addition to that the method past times which the goods inward enquiry are to survive sold tin survive crucially important.
How to brand your ain fertiliser here and here
More aural confusion here
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