The proposed registration related to ‘preserved, frozen, dried fruits and vegetables, in particular pumpkin seeds.’ But, despite the difference between food products and pharmaceuticals, the Court found that the names were similar within the meaning of the law – and rejected the registration, upholding the decision of the EUIPO.
The Court concluded that although ‘STYRIAGRA’ related to dried and preserved fruits, there was a risk that certain aphrodisiac effects could be attributed to the goods. This may lead to a connection being made between the two marks, increasing the likelihood that ‘STYRIAGRA would take unfair advantage of the established reputation of ‘VIAGRA’.
The possibility of the mark gaining unfair advantage in these circumstances was increased by the significant reputation which ‘VIAGRA’ holds across the whole of the EU. The Court considered evidence put forward by Pfizer that, because of advertising and wide press coverage, ‘VIAGRA’ was recognised widely among the general public – not only by patients who used the drug.
Pfizer’s opposition was initially rejected but was later overturned by the EUIPO’s Board of Appeal. The Board of Appeal found that there was similarity between the two protected marks, albeit a small one. Given Viagra’s established EU wide reputation, the similarity – however remote – meant ‘STYRIAGRA’ would not be registered, as there was a risk of unfair advantage being gained. This decision has now been approved by the General Court.
The decision is an example of the Court’s wide application of Article 8(5) to protect the most well-known of brands.
If you have any questions or would like to talk about your Intellectual Property, get in touch with our IP lawyers today.
