A question arose as to whether the mark MOMARID to be registered for pharmaceutical and veterinary preparations is likely to cause confusion with an existing mark LONARID for pharmaceutical and sanitary preparations. The General Court relying on various case laws opined that medicines, whether or not issued on prescription, can be regarded as receiving a heightened degree of attentiveness by consumers who are reasonably well informed and reasonably observant and circumspect. It thus upheld the conclusions of the OHIM [Office for Harmonisation in the Internal Market (Trade Marks and Designs)]. It agreed that the level of attention had to be considered to be above average although pain and fever-reducing medication is available without prescription in pharmacies and even in para-pharmacies.
The Board of Appeal had earlier held that though there was likelihood of confusion, the goods were similar to a low degree or dissimilar and allowed the mark MOMARID to be registered for pharmaceutical and veterinary preparations. The Board of Appeal differentiated between the attention level of professionals in the pharmaceutical field which was likely to be high and that of the end consumer which would be above average. The opposer to MOMARID contended that the end-consumer would be less attentive and likely to be confused.