General Court rejects GSK purple trademark attempt
GlaxoSmithKline (GSK) can’t register a shade of purple as a trademark covering asthma inhalers, the EU General Court has ruled.
In a decision issued today, September 9, the court rejected GSK’s argument that the colour was a distinctive brand indicator for its Seretide inhaler.
The judgment upholds an earlier decision of the European Union Intellectual Property Office (EUIPO) to deny GSK’s trademark application for the shade Pantone 2587C.
GSK applied for the mark covering classes 5 and 10. The goods and services include inhalers for treating asthma and chronic obstructive pulmonary disease, and their pharmaceutical components.
The UK company said it chose the colour for its Seretide brand as it is “unusual, unique and memorable and has not been used by any other competitor”.
But the court noted that GSK has used darker and lighter shades of purple to indicate the pharmaceutical strength of different inhalers.
This undermined GSK’s argument that the colour acted only as a brand indicator, rather than to inform consumers about its products’ characteristics.
According to the court, GSK’s evidence did not prove that the public would associate the inhalers with one specific shade of purple, rather than other lighter and darker shades.
“In those circumstances, it would not be in the public interest for the availability of a colour such as the mark applied for to be restricted for other traders selling goods of the same kind,” the General Court decision read.
The court added that to grant GSK a trademark for the colour risked “creating an unjustified competitive advantage for a single trader”.
GSK also challenged the EUIPO’s reasoning that the pharmaceutical company had to prove the colour had acquired distinctiveness in the eyes of patients, as well as medical professionals and pharmacists.
The UK company claimed that the role of physicians and pharmacists was “decisive” in making purchasing decisions for products such as Seretide.
But according to the court, this does not exclude all likelihood of confusion on the part of consumers themselves.
“Such a likelihood exists for patients since they are likely to be faced with those goods not only when used without a healthcare professional being present but also in the context of purchase transactions taking place at different times,” the court said.
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