Pharma- VIAGUARA a stimulating drink

A Polish company named Viaguara markets an energy drink named VIAGUARA. The energy drink is made of the Guarana fruit, which contains a high dosis of caffeine. The company files the application for VIAGUARA with the European trademark register. Pharmaceutical company Pfizer objects this application on the bais of their drug VIAGRA, which helps against erectile dysfunctions. After much deliberation the European Court decides that the trademarks are too similar.

As a rule it is assumed that consumers have a higher level of attention when it comes to pharmaceutical trademarks. However, since VIAGRA has acquired a large reputation within a large part of the European Union, the trademark is considered to be well known with the entire population. Because of this the scope of protection of VIAGRA is large.

Both VIAGRA and VIAGUARA are used by young people who are going out. Both products have a stimulating effect and mind and body. The consumer may therefore expect the same characteristics from VIAGUARA as from VIAGRA, namely a libido increasing ability. This means that a connection is more easily made between the two trademarks. The trademark VIAGUARA is refused, because it tries to profit from VIAGRA’s reputation. VIAGUARA would be able to easily increase their profits over the back of VIAGRA’s investments without any Financial retribution to Pfizer.

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IP quiz Trademarks

Puma is one of the bigger sports and lifestyle brands in the world. The core-business is the design, development and sale of (sports) shoes, (sports) clothing and accessories. In 1960, Puma registered an international trademark for a device designed in 1958: the formstrip. Since then, Puma has registered approximately 90 formstrip trademarks with validity in the Benelux or the European Union. Puma claims that this is a serial mark. Monshoe is a wholesaler of women's shoes and related products. The company designs and develops Monshoe shoes which it largely markets itself. Monshoe sells its women's shoes under the brands Shoecolate and Pearlz. The shoe Shoecolate is offered in various colour combinations. Puma claims that Monshoe infringes its well-known formstrip trademark. Monshoe contradicts this and states that the average consumer will not perceive the device of Monshoe on the sneakers as a trademark. And if the public will recognize a trademark in the decoration, it will not make the connection to Puma. According to Monshoe, the formstrip logo is not a well-known trademark within the meaning of the BVIE and the UMVo. There is no likelihood of confusion because the sign does not or hardly evoke any association with Puma among the public. In light of the above, who is right? Does this constitute decorative use or linking to a well-known trademark?