April 2019. German pharmaceuticals multinational Bayer has suffered a painful defeat. The European General Court recently ruled that the packaging for Salospir, a headache tablet made by the Greek company Uni-Pharma Kleon, did not infringe Bayer’s rights to the Aspirin brand. Verdict: the Greeks can go ahead with their EU trademark registration.

EU REGISTRATION

Bayer duly appealed, citing its various European trademark registrations to green and white packaging and the registration of the distinctive font used on the Aspirin box.

Examples of registered trademarks on which Bayer based its appeal

NO CONFUSION

However, the Court concluded that the words Salospir and Aspirin were completely unalike and that green and white were colours frequently used in the pharmaceuticals sector. There was consequently no risk of confusion between the Salospir packaging and Bayer’s registered trademarks.

ODDLY ENOUGH

Oddly enough, while Bayer owns many EU trademarks to the green and white design for its packaging, it hasn’t registered the packaging as a whole (both word and image elements) in the EU. If it had done so, it would certainly have had a stronger case. Bayer also claimed it owned rights to the overall packaging in Germany, but the Court dismissed the claim.

If Bayer had registered the packaging as a whole, it would have had a stronger case

LESSONS

The key lessons we can learn from the case are:

• word-based elements carry a lot of weight in a comparison of trademarks
• registering the overall packaging (as it is used in practice) as a trademark is a good move

Bas Kist