"chemicals used in the pharmaceutical and medical industry” are … dissimilar with “pharmaceutical”!!!
Written by Jean Philippe Bresson Friday, 15 January 2010 09:45
January 4, 2010- OHIM
On January 4, 2010, the Opposition Division of the OHIM rejected the opposition involving the marks DROSETUX and DROSETIL to the extent that “chemicals used in the pharmaceutical and medical industry” (class 1) were regarded as dissimilar with “pharmaceutical, veterinary and dietetic preparations adapted for medical use” (class 5).
For the OHIM, said chemicals are normally bought by pharmaceutical companies in high quantities on the wholesale level to form part of pharmaceuticals packaged and sold as units over the counter in pharmacies or drugstores.
The commercial channels were also pointed out as being different, the products at hands being not marketed alongside each other: chemicals of class 1 are manufactured in chemical production plants and processed in chemical laboratories or pharmaceutical companies where the finished products are made; pharmaceuticals of class 5 move from the pharmaceutical companies to pharmacies, hospitals, clinics and other healthcare institutions.
The OHIM consequently took the view that consumers of pharmaceutical products have no interest in large-scale purchasing of the applicant’s chemicals and are not concerned with the origin of the ingredients contained within the pharmaceuticals. Equally, the customers of the chemicals undertakings have no interest in buying final pharmaceutical products. Additionally, whereas products are admittedly used for the manufacturing of pharmaceuticals, this connection is very tenuous.
These differences in nature, purpose, method of use, distribution channels, targeted consumers were considered as significant by the Office what contradicts with the most current European case-law. This (dis)similarity situation will have to be further monitored to know whether this remains an isolated case or whether the usual tendency is now changing.
Generics: to reduce or not to reduce TM monopoly?
Written by Jean Philippe Bresson Tuesday, 05 January 2010 16:47
The French Senate voted on the law ‘Financing the National Social Security for 2010’ which was supposed to amend the Public Health Code by introducing the article L. 5121-10-3 relating to generics and worded as follows:
“The owner of an intellectual property right that protects the appearance and the texture of oral pharmaceutical forms of a reference product within the meaning of article L. 5121-1 may not prohibit the oral pharmaceutical forms of a generic drug substitutable to this product under article L. 5125-23, from showing a similar or identical texture or appearance.”
The manufacturers of generic drugs would then have been in a position to freely imitate the shape and/or color of the tablets proper to the original marked pharmaceutical.
The planned article however did not went through the filter of the French Constitutional Council which upheld on December 22, 2009, that said provision was contrary to the French Constitution and could not consequently be enacted.
The ground retained by the Constitutional Council is the lack or the very limited effect that the provision in concerns would have on the compulsory expenses of the social security…
The intended exception to pharmaceutical trademarks monopoly is not consequently radically excluded in itself and it might be that it surfaces again at some later stage and out of the particular context attached to the yearly Social Security law...
MERRY CHRISTMAS AND HAPPY NEW YEAR
Written by Séverine Fitoussi Thursday, 24 December 2009 13:04
All IP TALK team wishes you a very happy Christmas and happy new year 2010Generics (will) further reduce TM monopoly in France
Written by Jean Philippe Bresson Thursday, 24 December 2009 13:02
The French Senate just voted on the law ‘Financing the National Social Security for 2010’ which will amend the Public Health Code by introducing article L. 5121-10-3 relating to generics and stating the following:
“The owner of an intellectual property right that protects the appearance and the texture of oral pharmaceutical forms of a reference product within the meaning of article L. 5121-1 may not prohibit the oral pharmaceutical forms of a generic drug substitutable to this product under article L. 5125-23, from showing a similar or identical texture or appearance.”
The manufacturers of generic drugs would then be in a position to freely imitate the shape and/or color of the tablets proper to the original marked pharmaceutical. This provision would consequently introduce an impressive exception to trademark monopolies in the pharmaceutical industry. The planned article is currently the hands of the French Constitutional Council - without details available on the extent of the claim at this time - but the provision is likely to succeed. We will monitor the question and further report!
eBay pays €1.7 million fine to LVMH for breaching injunction
Written by Jean Philippe Bresson Tuesday, 22 December 2009 16:56
Trade court of Paris - November 30, 2009
The French Trade Court of Paris upheld on November 30, 2009, a fine of 1.700.00 € against eBay: the auction site failed to take sufficient and appropriate measures so as to comply with the injunctions resulting from the decision of June 30, 2008, ruling eBay liability and granting LVMH claim.
On June 30, 2008, eBay was condemned to pay almost 40 millions of Euros to LVMH for infringing their selective distribution networks. eBay was regarded as having the obligation to ascertain that its activities did not involve illegal situations. The active interventions of eBay while helping for descriptions, presentations and positions of sellers together with selling advices for perfume products compromised the coherence of the distribution networks and were regarded as possibly lacking of respect for the products and trademarks at hands which carried some prestige.
In this June 30, 2008, decision, the Court ordered eBay to stop:
- The broadcast of auctions for the plaintiffs perfumes or for products presented as such ;
- The use by eBay sellers of the trademarks of the plaintiffs in particular in titles and descriptions of the products.
Each of these orders was submitted to a fine of 50.000€ per day in case eBay failed to comply with them. LVMH considered eBay had not taken sufficient measures to comply with the Court decision brought the matter before the Trade Court of Paris. The Court found that, since last ruling, 1300 auctions advertised cosmetics and perfumes in relation to the plaintiffs. eBay vainly raised its human efforts consisting in employing 87 people dedicated to the question at hands.
This new decision has been upheld under a procedural angle. But it demonstrates the extent of LVMH willingness in the battle engaged against eBay. After its victory on June 30, 2008, we previously reported that LVMH also succeeded in suing eBay for the non-authorized use of trademarks as keywords in various search engines (Paris Court of First Instance, September 18, 2009). The decision above is the third step forward in favor of LVMH.
More Articles...
Page 1 of 4
