More on Alcon - pharma TMs and confusion

The IPKat has been taking another read through last week’s ECJ Alcon decision (initially noted by the IPKat here). He finds the court’s comments on identifying the relevant public when prescription pharmaceuticals involved rather puzzling. The court’s attitude is that, even though it is healthcare professionals who will determine which drugs are dispensed:

"such a likelihood of confusion also exists for those consumers [i.e. end users] since they are likely to be faced with those products, even if that takes place during separate purchasing transactions for each of those individual products, at various times".

The court adds:

"Furthermore, since it is undisputed that the whole process of marketing the goods at issue is aimed at the end-user’s acquisition of them, the Court of First Instance was entitled to hold that the role played by intermediaries, even if they are healthcare professionals whose prior intervention is required in order to sell those goods to end-users, must be in part balanced against the high degree of attentiveness which may be shown by those users, in the light of the fact that the goods at issue are pharmaceutical products, when they are prescribed and, consequently, against those users’ ability to make those professionals take into account their perception of the trade marks at issue and, in particular, their requirements or preferences".

The ECJ’s decision here seems to be incredibly formalistic – basing itself on the literally correct fact that it is patients who will ultimately take home the medicaments, but failing to adequately take into account that cannot go against their doctors’ prescriptions. The court further seems to be of the opinion that patients are in a position to influences their doctors in their prescription choices. The IPKat isn’t even convinced that doctors have carte blanche, at least in the UK, bearing in mind that the National Institute for Clinical Excellence issues guidance as to what doctors prescribe. Another point of note is that, to achieve this outcome, the ECJ appears to be hinting at the possibility of pre and post-sale confusion being relevant.