In Pinewood Laboratories Limited v May & Baker Limited (January 15 2009), the acting controller has held that there was no likelihood of confusion between the trademarks COZITAN and NOZINAN for pharmaceutical preparations.
Pinewood Laboratories Limited
applied to register the trademark COZITAN in respect of goods in Class 5 of the Nice Classification
- namely, pharmaceutical preparations and substances. On advertisement, the application was opposed by May & Baker Limited
. May & Baker has owned the trademark NOZINAN, which is registered for pharmaceutical preparations and substances for human and veterinary use, since 1979. The mark has been in use since 1979 in connection with the goods covered by the registration.
The acting controller held that for the opposition to be successful, there would have to be a degree of similarity between the trademarks COZITAN and NOZINAN such that the average consumer, who is aware of the latter as a trademark for pharmaceuticals, would be caused to call it to mind if exposed to use of the former as a trademark for those goods. According to the acting controller, there was insufficient similarity between the marks to suggest that the average consumer would make any link between them. The marks are more different than similar when compared by reference to the respective overall impression given by them. The acting controller pointed out that the opening syllable of a word is generally the most important in terms of its visual and aural identity. However, the opening syllables of the COZITAN and NOZINAN marks differed significantly.
The acting controller further held that the overall aural and visual impressions given by the marks were dominated and determined primarily by the initial letters of the words 'cozitan' and 'nozinan'. According to the acting controller, the differences between those letters created a visual and aural difference between the trademarks.
The acting controller also found that both 'cozitan' and 'nozinan' were invented words that had no meaning and thus were neither conceptually similar nor dissimilar. The shared elements of the marks were not such as to be likely to trigger recollection of the respective marks individually or to suggest any connotative connection between them. In addition, the acting controller was not persuaded that the average person who knew of the Nozinan pharmaceutical product would be caused to recollect that product and name if he or she were to encounter pharmaceuticals offered for sale under the mark COZITAN. On that basis, the acting controller dismissed the opposition.
Patricia McGovern, DFMG Solicitors, Dublin