Danish courts have remedy for confusion between pharmaceutical marks

In Farmaceutisk Laboratorium Ferring A/S v Wyeth (Case V-112-02), the Maritime and Commercial Court of Copenhagen has ruled that the defendant's PERTANZA mark for a pharmaceutical product is confusingly similar to the plaintiff's PENTASA mark for similar goods. The decision indicates that the Danish courts are becoming increasingly strict in their interpretation of confusing similarity when applied to pharmaceutical marks.

In previous decisions, the Danish courts have applied a similar 'likelihood of confusion' test for pharmaceutical trademarks as that used for marks relating to other types of goods or services. The courts have also taken into consideration the fact that parties involved in the pharmaceutical trade usually have expert knowledge of this area. For example, previous judgments have held that the mark CYCLOPENTAL is not confusingly similar to CYCLONAL (Case SH 6/1940) and DRENISON is not confusingly similar to TRENIMON (Case HD II 185/1904).

A change in practice arose last year in a case involving the marks SELOZOC and METOZOC (Case V-82/2000). These marks were held to be confusingly similar. This change now appears to have been confirmed by the Maritime and Commercial Court of Copenhagen in the PERTANZA Case.

The court held that US pharmaceutical firm Wyeth's PERTANZA mark was confusingly similar to Farmaceutisk Laboratorium Ferring's PENTASA mark. It reasoned that the test for likelihood of confusion between pharmaceutical marks must be stricter than that applied to marks for other types of goods and services. The court stated that this is the case because confusion between pharmaceutical marks could have very serious consequences. It could, for example, lead consumers into using the wrong type of medication.

Christian Levin Nielsen, Zacco Advokater, Copenhagen