[The IPKat] A bitter pill for ARMUNIA: ARYUNA clears confusion test as General Court holds firm on pharma attention (T‑591/24)
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A bitter pill for ARMUNIA: ARYUNA clears confusion test as General Court holds firm on pharma attention (T‑591/24)
Covid did not just leave consumers with hand sanitiser habits and a drawer full of lateral-flow tests. It also left them fluent, or at least TikTok-fluent, in collagen, microbiomes, SPF, inflammation and “immune support”. Healthmaxxing has made the public sound more pharmaceutical than ever. But does sounding informed make the average consumer more attentive, or just more confidently confused?
In Sandoz v EUIPO (Case T-591/24), decided on 1 July 2026, the General Court was invited to test how much real-life patient behaviour the notional consumer can absorb before the doctrine starts to feel unwell.
In September 2022, Slovenian company Be Healthy d.o.o. applied to register ARYUNA as an EU word mark for a range of Class 5 goods (tincture of iodine, tinctures for medical purposes, medicinal herbs, herbal medicine, and decoctions of medicinal herb). Novartis, whose rights later passed to Sandoz AG, opposed under Article 8(1)(b) EUTMR on the basis of two earlier ARMUNIA word marks: a Benelux registration for oral contraceptives and an Austrian registration for pharmaceutical preparations for human use.
The Opposition Division and then the Fifth Board of Appeal both rejected the opposition. The Board found: the signs visually and phonetically similar only to a low degree and conceptually not comparable; the earlier marks normally distinctive; and the relevant public, general and professional alike, highly or at least relatively highly attentive. Even for identical goods, there was no likelihood of confusion.
Sandoz, supported by MARQUES as intervener, took the fight to Luxembourg.
For now, the attentive patient remains a fixture of EU trade mark law, however distracted the real one may be.
In Sandoz v EUIPO (Case T-591/24), decided on 1 July 2026, the General Court was invited to test how much real-life patient behaviour the notional consumer can absorb before the doctrine starts to feel unwell.
Background
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| AI said it was ARYUNA. Or was it ARMUNIA? |
The Opposition Division and then the Fifth Board of Appeal both rejected the opposition. The Board found: the signs visually and phonetically similar only to a low degree and conceptually not comparable; the earlier marks normally distinctive; and the relevant public, general and professional alike, highly or at least relatively highly attentive. Even for identical goods, there was no likelihood of confusion.
Sandoz, supported by MARQUES as intervener, took the fight to Luxembourg.
The reform argument
The single plea alleged infringement of Article 8(1)(b) and its most ambitious limb was not the usual “the Board weighed the factors wrongly”. Sandoz asked the Court to re-examine the settled case law treating the pharmaceutical consumer as unusually attentive. In everyday reality, it argued, patients and even carers confuse similarly named medicines, under stress, in pain, and in emergencies. The assumption of consistently high attention was therefore, in Sandoz’s view, a fiction that endangers patient safety. Attention should be considered average at most, and patient safety should be prioritised in the global assessment, outweighing any elevated attention.
The applicant added that Recital 11 EUTMR, which lists the elements bearing on confusion, pointedly omits the level of attention. It also invoked Arsenal Football Club (C-206/01) for the proposition that post-sale confusion must be taken into account. To make its factual point, it filed a stack of new material, including medication error reports and studies, for the first time before the Court.
The applicant added that Recital 11 EUTMR, which lists the elements bearing on confusion, pointedly omits the level of attention. It also invoked Arsenal Football Club (C-206/01) for the proposition that post-sale confusion must be taken into account. To make its factual point, it filed a stack of new material, including medication error reports and studies, for the first time before the Court.
What the Court did
Very little of this survived. As a threshold matter, the new annexes were declared inadmissible. The Court’s review was confined to the factual and legal frame put before the Board, and Sandoz’s attempt to relabel its studies as mere “contextual material”, rather than evidence, failed. That narrow exception covers case law and comparable authority, not empirical proof that attention is low.
On the merits, the Court held the line on every point. The heightened attention rule applies not only to prescription and over the counter medicines, but also to tinctures, medicinal herbs, and decoctions which, though “strictly speaking” not medicines, belong to the field of health (echoing ECHINAID and UROAKUT). The everyday confusion argument foundered on Ruiz-Picasso (C-361/04 P): there will always be situations in which any public grants any product only fleeting attention, but to demand that the assessment track the lowest attention imaginable would drain the variable attention criterion of all meaning. Recital 11 establishes neither an exhaustive list, given the tell-tale “in particular”, nor a hierarchy, so the level of attention cannot be demoted out of the analysis.
The most consequential passage concerns patient safety itself. The likelihood of confusion under Article 8(1)(b) relates to confusion as to commercial origin, namely whether the public believes the goods come from the same or economically linked undertakings, and nothing else. The risk that a patient takes one medicine in place of another concerns the identity or characteristics of the product, not who made it, and therefore falls outside the provision. Arsenal, the Court added, laid down no general rule dispensing with the high attention analysis.
The action was dismissed, Sandoz was ordered to pay EUIPO’s costs, and MARQUES was left to bear its own.
That refusal is, this Kat thinks, the right instinct. Sandoz was effectively asking trade mark opposition to do the work of medicines regulation. But the concern it raised is real, and it is already addressed elsewhere. Confusable drug names are policed ex ante by the EMA and national agencies through invented name review and look alike and sound alike safety checks, precisely so that patient safety does not have to be smuggled into Article 8(1)(b). The “exception” the applicant sought exists; it simply lives in a different statute and area of the law.
There is a subtler tension worth flagging, and this Kat offers it as her own cross-reference rather than the Court’s. In Intel (C-252/07) and Environmental Manufacturing (C-383/12 P), the Court of Justice insisted on the empirical consumer,
demanding hard proof of a change in economic behaviour before dilution could be found. Here, faced with real world evidence of low attention, it insisted on the notional consumer and refused to let that evidence disturb the presumption. The average consumer, it seems, is empirical when realism would raise the bar for the claimant, and notional when realism would lower it. Whether that asymmetry is principled or merely convenient is a question left unaddressed.
On the merits, the Court held the line on every point. The heightened attention rule applies not only to prescription and over the counter medicines, but also to tinctures, medicinal herbs, and decoctions which, though “strictly speaking” not medicines, belong to the field of health (echoing ECHINAID and UROAKUT). The everyday confusion argument foundered on Ruiz-Picasso (C-361/04 P): there will always be situations in which any public grants any product only fleeting attention, but to demand that the assessment track the lowest attention imaginable would drain the variable attention criterion of all meaning. Recital 11 establishes neither an exhaustive list, given the tell-tale “in particular”, nor a hierarchy, so the level of attention cannot be demoted out of the analysis.
The most consequential passage concerns patient safety itself. The likelihood of confusion under Article 8(1)(b) relates to confusion as to commercial origin, namely whether the public believes the goods come from the same or economically linked undertakings, and nothing else. The risk that a patient takes one medicine in place of another concerns the identity or characteristics of the product, not who made it, and therefore falls outside the provision. Arsenal, the Court added, laid down no general rule dispensing with the high attention analysis.
The action was dismissed, Sandoz was ordered to pay EUIPO’s costs, and MARQUES was left to bear its own.
Comment
A major generics manufacturer and the leading brand owners’ association together asked the General Court to bend the confusion test toward pharmacovigilance, and the Court declined with unusual clarity.That refusal is, this Kat thinks, the right instinct. Sandoz was effectively asking trade mark opposition to do the work of medicines regulation. But the concern it raised is real, and it is already addressed elsewhere. Confusable drug names are policed ex ante by the EMA and national agencies through invented name review and look alike and sound alike safety checks, precisely so that patient safety does not have to be smuggled into Article 8(1)(b). The “exception” the applicant sought exists; it simply lives in a different statute and area of the law.
There is a subtler tension worth flagging, and this Kat offers it as her own cross-reference rather than the Court’s. In Intel (C-252/07) and Environmental Manufacturing (C-383/12 P), the Court of Justice insisted on the empirical consumer,
demanding hard proof of a change in economic behaviour before dilution could be found. Here, faced with real world evidence of low attention, it insisted on the notional consumer and refused to let that evidence disturb the presumption. The average consumer, it seems, is empirical when realism would raise the bar for the claimant, and notional when realism would lower it. Whether that asymmetry is principled or merely convenient is a question left unaddressed.
For now, the attentive patient remains a fixture of EU trade mark law, however distracted the real one may be.
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