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Court Dismisses Medicine Trademark Claim

March 23, 2004

In Wycth Holdings Corporation v. Rafa Laboratories Ltd. the Jerusalem District Court dismissed a claim that the mark LANTON, which is a generic medicine for the original ZOTON digestion medicine, infringed on the mark ZOTON.

Honorable Judge Efal-Gabay ruled that although both marks are composed of five letters, there was not any misleading visual similarity between the marks. One important factor is that due to the different prefix the two products will not be listed close to each other n alphabetical lists. Even though both products have the same suffix, the prefix is substantially different. In addition the court noted that the marks were printed on the products in different colors, different fonts and distinct packaging.

The court ruled that the fact that the product is a prescription drug prescribed by specialist doctors eliminates any confusion that might occur in cases were consumers request over-the-counter drugs.

Furthermore, the court ruled that the fact that defendant ran an extensive advertising campaign within the medical community presenting LOTON as a generic alternative to ZOTON reduces the probability of confusion between the two drugs. Presenting the product as a competitive alternative leads to the dismissal of the claim of intention to confuse.

Since LOTON was adopted by the HMOs due to its lower price, all doctors and pharmacists providing services to the HMOs are obligated to provide LOTON reducing the likelihood of confusion.

The court in Wytch rejected the notion that the general phenomena of wrong prescription should have an effect over the outcome. According to the court limiting competition is not the right way to lower the number of mistaken prescriptions. Furthermore, even if the speculative confusion between LOTON and ZOTON was to occur there was no foreseeable damage to consumers since LOTON is a generic ZOTON based on the same active molecules.

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