As educated consumers should be taken into account, particularly when comparing the trademarks covering medicines, it is a well-established principle that the likelihood of confusion between the trademarks covering the goods in class 05 is harder to occur. The Turkish Court of Cassation (“the Coc”) has reiterated this concept repeatedly, so the courts strictly adhere to it and consider a great degree of similarity before accepting that healthcare professionals might confuse or associate the trademarks.
Despite the fact that the goods covered by the trademarks belong to the same subclass, the CoC’s recent decisions show that it has advanced and begun to consider whether or not the targeted consumers and the nature of the goods are the same. In November 2023, the CoC made it clear in its ruling that when there is a high degree of similarity between the trademarks, the concept of an informed consumer should be contested after considering whether or not the pharmaceuticals’ active ingredients are the same, what diseases they will be used to treat, and whether or not they are only sold in pharmacies (11th Civil Chamber of the CoC, Merit No: 2022/2616, Decision No: 2023/6376, Decision Date: November 1, 2023). Therefore, concluding that trademarks would not be confused would need more than just acknowledging their attraction to knowledgeable customers.
Other CoC and Regional Court of Appeal (“the RCA”) decisions demonstrate the application of this notion. For instance, the likelihood of confusion between the trademarks “FUROSYM” and “FUROKSIM” is contested in its ruling dated June 2022. Prior to the court proceedings, “Medicines for human and animal health, chemical products for medical and veterinary purposes, radioactive chemicals for medical and veterinary purposes” was removed from the scope of the application “FUROSYM” upon opposition relying upon the trademark “FUROKSIM”, which is registered for “medicines” only. Since these goods appeal to technicians who work with pharmacists and with veterinary physicians rather than just healthcare professionals, the first instance IP Court (“the IP Court”) found that there is a likelihood of confusion between the trademarks.
The RCA reversed the IP Court’s decision by citing the expert panel report that was received during the IP Court proceedings. The report highlighted the experts’ conclusions that “FUROSYM” is a medicine for animal health and can be prescribed by veterinary physicians, while “FUROKSIM” is a medicine for human health that can only be prescribed by a physician and sold in pharmacies. The RCA referred to experts’ additional findings in its decision and stated that even though the trademarks are similar aurally, it is unlikely for both products to be sold without a prescription and that their target consumer base will be confused. The RCA therefore determined that there was no likelihood of confusion between the trademarks. The RCA’s decision was upheld by the CoC (11th Civil Chamber of the CoC, Merit No: 2021/1215, Decision No: 2022/5179, Decision Date: June 22, 2022).
It is interesting to note that even though the trademarks cover products listed in the same subclass, a thorough investigation should be conducted by contrasting the target consumers and the characteristics of the goods in question. Indeed, the marketing authorization processes for medicines for human use and for animal health are regulated by two different ministries. Although the manufacturing and distribution processes of the products are parallel, the targeted consumer could be considered different. Therefore, it would not be sufficient to conclude that there is a likelihood of confusion between the trademarks just because they are extremely similar and cover the goods in in the same subclass.