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Top Articles - Intellectual Property Law - Trade Mark Infringement - What is the Overall Impression?
The recent case of Wistbray Ltd v Creative Nature Ltd (2005) emphasises that the Court will look at the overall impression of a sign to determin
According to USFDA, a combination product is one composed of any combination of a drug and device; biological product and device; drug and biological product
e whether it infringes a trade mark.
Section 10 of the Trade Marks Act 1994 provides, so far as is material: '(2) A person infringes a register
Section 10 of the Trade Marks Act 1994 provides, so far as is material: '(2) A person infringes a register
; or drug, device, and biological product and fixed dose combination would include two or more combinations of drug.
Examples of combination products may in
Examples of combination products may in
d trade mark if he uses in the course of trade a sign where because.(b) the sign is similar to the trade mark and is used in relation to goods o
lude drug-coated devices, drugs packaged with delivery devices in medical kits, and drugs and devices packaged separately but intended to be used together.
r services identical with or similar to those for which the trade mark is registered, there exists a likelihood of confusion on the part of the
here is enormous increase in the number of combination products entering the market in the recent years. Combination products have proven advantages but fixe
ublic, which includes the likelihood of association with the trade mark'.
The claimant company, Wistbray Ltd, was the registered proprietor of
The claimant company, Wistbray Ltd, was the registered proprietor of
d dose combinations are still in the process of convincing regulatory authority on their advantages over the single ingredient formulations.
Combination pro
Combination pro
UK registered trade mark 'DRAGONFLY' in Class 30 in respect of teas. It was also the registered proprietor of a European Community registered t
ucts have become life saving products for the pharmaceutical companies who doesn’t have many innovative molecules in their product pipeline and have been inc
rade mark for 'DRAGONFLY', combined with a logo of a dragonfly in silhouette in Class 30 in respect of teas. Wistbray had been using the trade m
easingly used in the product life cycle management. Even the companies having product patents are trying to extend their product life cycle through the combi
rks for the sale of teas since September 2000 and had an annual turnover of about ?1 million.
Creative Nature, a UK company, traded in incense,
Creative Nature, a UK company, traded in incense,
nation products and maximize the revenues. But the companies involved in this practice are overlooking that they are burdening the patients both economically
arts and crafts and herbal teas. Only a very small proportion of its sales were for teas in Class 30. Creative Nature used a sign comprising a p
and physically. They need to rightly judge the benefits of the combination products and they have to even look at the risks involved when combining the produ
ictorial depiction of a dragonfly in flight with the words 'CREATIVE NATURE'.
Wistbray claimed that Creative's use of its sign infringed both i
Wistbray claimed that Creative's use of its sign infringed both i
ts. Some of the combination products were well accepted by physicians while others suffered. Companies involved in development of combination products are fi
s trade marks, suing for infringement under s.10 (2)(b) of the Trade Marks Act 1994 and seeking summary judgment.
The court held that: the clai
The court held that: the clai
ding difficulty in defining their combination products and facing various challenges from selecting a combination to marketing it.
Following aspects would a
Following aspects would a
ant's use of the marks was widespread and longstanding;
the claimant's marks, both as an expression and as a pictorial symbol for use in teas,
the claimant's marks, both as an expression and as a pictorial symbol for use in teas,
dd to the challenges in developing combination products:
Which markets to tap where the combination products can do fairly well?
Which combination prod
Which markets to tap where the combination products can do fairly well?
Which combination prod
was distinctive and memorable;
the fact that the defendant's teas were largely medicinal and were sold at specialised outlets did not remove th
the fact that the defendant's teas were largely medicinal and were sold at specialised outlets did not remove th
cts are meaningful and rational?
Which therapeutic categories to select?
Which Combinations can address unmet needs of the patients?
Do combin
Which therapeutic categories to select?
Which Combinations can address unmet needs of the patients?
Do combin
likelihood of confusion;
the likelihood of confusion between marks should be appreciated globally, taking into account all relevant factors of
the likelihood of confusion between marks should be appreciated globally, taking into account all relevant factors of
tions increase the patient compliance?
What would be the developing cost?
How to tackle the risks encountered during combination product developmen
What would be the developing cost?
How to tackle the risks encountered during combination product developmen
the case;
global appreciation should be based on the overall impression given by the marks, bearing in mind their distinctive and dominant comp
global appreciation should be based on the overall impression given by the marks, bearing in mind their distinctive and dominant comp
t?
As combination products don't fit into the traditional categories of drugs, medical devices, or biological products, the USFDA is in the process of devel
As combination products don't fit into the traditional categories of drugs, medical devices, or biological products, the USFDA is in the process of devel
onents;
it was satisfied in the instant case that the defendant's sign was similar to the claimant's trade marks, the defendant's goods were si
it was satisfied in the instant case that the defendant's sign was similar to the claimant's trade marks, the defendant's goods were si
ping new procedures for reviewing their safety, efficacy and quality.
Professional from academic institutions, pharmaceutical industries, health care indust
Professional from academic institutions, pharmaceutical industries, health care indust
ilar to those of the claimant's, and the result was at least a likelihood of confusion on the part of the public.
The court granted an injuncti
The court granted an injuncti
y and representatives from various regulatory agencies are working out to design the regulatory requirements for manufacture and sale of combination products
n restraining the defendant's use of the mark.
If you require further information contact us at enquiries@rtcoopers.com
© RT COOPERS, 2005. Th
If you require further information contact us at enquiries@rtcoopers.com
© RT COOPERS, 2005. Th
.
As there is an increasing trend of the combination products companies manufacturing such products should be able to tackle the problems involved in the de
As there is an increasing trend of the combination products companies manufacturing such products should be able to tackle the problems involved in the de
is Briefing Note does not provide a comprehensive or complete statement of the law relating to the issues discussed nor does it constitute legal
elopment. They need to be wiser in analyzing the market trends and the regulatory requirements.
Companies that provide selfless information through particip
Companies that provide selfless information through particip
advice. It is intended only to highlight general issues. Specialist legal advice should always be sought in relation to particular circumstances
tion in industry events and feedback to regulatory authorities would be able to face the challenges and will be successful in developing combination products
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