TMEP 1207.01(d)(xii): Pharmaceuticals or Medicinal Products

October 2017 Edition of the TMEP

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1207.01(d)(xii)    Pharmaceuticals or Medicinal Products

When determining if a likelihood of confusion exists between marks used in connection with pharmaceuticals or medicinal products for human use, greater care must be taken to avoid confusion because mistakes in the selection and use of these goods may result in serious and harmful consequences. See Clifton v. Plough, Inc., 341 F.2d 934, 934, 144 USPQ 599, 600 (C.C.P.A. 1965); In re Cook Med. Tech. LLC, 105 USPQ2d 1377, 1381-82 (TTAB 2012); Schering Corp. v. Alza Corp., 207 USPQ 504, 509 (TTAB 1980); Am. Home Prods. Corp. v. USV Pharm. Corp., 190 USPQ 357, 359-60 (TTAB 1976). Thus, in cases where confusion involving pharmaceuticals or medicinal products could result in harm or other serious consequences to consumers, the Trademark Trial and Appeal Board and its primary reviewing court have considered this an additional relevant factor and applied a stricter standard that may require a lesser degree of proof to establish likelihood of confusion. See Glenwood Labs., Inc. v. Am. Home Prods. Corp., 455 F.2d 1384, 1386-87, 173 USPQ 19, 21-22 (C.C.P.A. 1972); Schering Corp., 207 USPQ at 509; Ethicon, Inc. v. Am. Cyanamid Co., 192 USPQ 647, 651-52 (TTAB 1976). But see Mini Melts, Inc. v. Reckitt Benckiser LLC, 118 USPQ2d 1464, 1476, 1478 (TTAB 2016) (considering opposer’s arguments based on safety concerns about potential consumer confusion regarding opposer’s ice cream and applicant’s medicine, but finding that "any problems arising from the abuse or misuse of Applicant's medicine, whether potential or actual, has no demonstrated relationship to the identical trademarks under which Applicant's medicine and Opposer's ice cream are sold").