Sunday, 21 February 2010

Kenya opposition case

It seems that it is Glaxo monday! John Syekei has provided this alert illustrating the "relevant public" in the test for confusing similarity involving pharma brand names, in Kenya:

"Kenyan Courts have again shown their resolve to ensure protection of branded owners rights in Kenya. In this interesting case, Syner Med had applied for the registration of Synercef trade mark in Class 5. Glaxo filed an opposition to this mark based on its existing registered mark Zinacef. The Registrar in disallowing the opposition found that the two marks were not phonetically nor visually similar. The High Court, on appeal by Glaxo, overturned the decision of the Registrar and held that the two marks were phonetically similar taking judicial notice of the fact that many people in Kenya would likely pronounce S as Z and vice versa. Pronounciation in a phonetically identical manner was the principle the Judge brought out. The fact that the 2 drugs were prescription only drugs did not preclude the fact that confusion would be caused when an order is made orally or by telephone to such professionals such as pharmacists or doctors. The Judge cancelled the registration of Synercef and directed SynerMed to pay costs of the suit.

So it seems to me that when brand owners come up with their names they need to consider how the common man in the country in question would pronounce certain words! Very interesting."

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