Special Criteria of Trade Mark Protection with Regard to Pharmaceutical Products in the European Union Legal System

The registration procedure for trade marks designed for pharmaceutical products is more complicated than the one characteristic of other trade marks. Irrespective of the assessment performed by the relevant trade mark office (e.g. Office for Harmonization in the Internal Market - OHIM), pharmaceutical trade marks must be additionally evaluated for public health consequences by health authorities such as the European Medicines Agency. Moreover, genuine use in relation to pharmaceutical trade marks is a crucial problem for their protection, taking into account the fact that the authorisation procedure for a medicine often takes many years which creates the risk of revocation of the right to a trade mark, since the mark cannot be used until the medicine is authorised. One of the solutions may be a repeated trade mark application. However, in this case, a risk of bad faith allegation may arise which results from the OHIM Guidelines. There are also some specific criteria to determine a likelihood of confusion in relation to pharmaceutical trade marks. For example, with respect to prescription-only medicines, according to the latest case-law, consumers are regarded to be both healthcare professionals and end-users (patients), and it is believed that the degree of consumer attention depends mainly on the kind of disease that the medicine in question cures (whether it is a serious one or not).