TPI disregards usual practice regarding level of attention when buying pharma goods

In Turkey, unlike in other jurisdictions, the relevant Trademark Laws and regulations do not define the ‘relevant consumers’ for the purpose of evaluating the similarity and likelihood of confusion between two marks in opposition proceedings. In this respect, the Turkish Decree-Law No 556 on the Protection of Trademarks refers to the “concerned parties” or “concerned group of people” as being the “public”.

This definition arises from the jurisprudence of the courts and from the decisions of the Turkish Patent Institute (TPI), and may change from case to case. For instance, when trademarks for common alimentary products - such as chocolates, biscuits or non-alcoholic beverages - are involved, the relevant consumer is an average consumer with a low level of attention, who can easily be confused and deceived in the presence of similar trademarks. However, when it comes to trademarks used on pharmaceutical preparations, prescription drugs or similar goods, it is accepted that the relevant consumer has a higher level of attention, as such goods are provided by professionals (doctors, nurses or pharmacists).

However, a recent decision of the TPI suggests that the latter will not automatically consider that the relevant public has a high level of attention when purchasing pharmaceutical goods.

A Slovenian pharmaceutical company applied for the registration of the trademark ABIGENOL for goods in Class 5 of the Nice Classification, including pharmaceutical preparations:

An Italian pharmaceutical company, the owner of the earlier registered stylised trademark ABIOGEN PHARMA (depicted below) in Turkey, filed an opposition against the application, alleging that the trademarks were confusingly similar and that the goods were identical.

The TPI examined the opposition and, at first, rejected it. Upon the filing of an appeal by the Italian company, the Re-examination and Evaluation Board of the TPI accepted the objections and decided to reject the trademark application for ABIGENOL in its entirety, stating that there was a risk of confusion between the trademarks, including a risk of association due to the visual and oral similarities. As the trademarks were used for the same goods or the same type of goods, the board confirmed the rejection of the application in its entirety.

The decision is significant in that the TPI did not question the level of attention of the relevant public or consider that the latter had a high level of attention because the trademarks involved were used for pharmaceutical goods.

Ceylin Beyli, CBL Law Office, Istanbul

The author represented the owner of the trademark ABIOGEN PHARMA in this case