ARMUNIA vs. ARYUNA (T-591/24): Likelihood of Confusion for Pharmaceutical Trade Marks Under Scrutiny
On 3 March 2026, the hearing in Case T-591/24 (Sandoz v EUIPO) took place before the General Court of the European Union in Luxembourg – a case of fundamental significance for assessing the likelihood of confusion between pharmaceutical trade marks. The hearing lasted nearly two hours and resulted in an intense legal discussion on the level of attention of the relevant public and the imperfect recollection of average consumers. The decision of the General Court is expected before the end of 2026.
The Facts: ARMUNIA vs. ARYUNA
The opposition concerns the EU trade mark ARMUNIA, registered for contraceptives, and the later EU trade mark application ARYUNA, filed for tinctures for medical purposes and medicinal herbs. The Opposition Division of the EUIPO rejected the opposition on the grounds that there was no likelihood of confusion, primarily because the relevant public in the healthcare sector displays a heightened level of attention. On appeal, the EUIPO Board of Appeal upheld this decision, reasoning that the goods in question are medicines and therefore attract an increased level of attention from consumers.
Core Argument: Sound-Alike Confusion and Patient Safety
Sandoz filed an action before the General Court, arguing that the blanket assumption of a heightened level of attention in the medical field does not reflect reality. Numerous studies and documented cases demonstrate a high rate of medication errors caused by phonetically similar – “sound-alike” – medicinal product names, posing a serious risk to patient safety. If the elevated level of attention were applied consistently, likelihood of confusion would almost always have to be denied in pharmaceutical cases – an outcome that contradicts actual consumer perception.
Imperfect Recollection as a Central Criterion
A key shortcoming of the EUIPO’s decision lies in its one-sided focus on the level of attention, while neglecting the principle of imperfect recollection: the average consumer rarely has the chance to compare conflicting marks side by side and must rely on the imperfect image of the earlier mark kept in mind. This applies all the more to pharmaceutical trade marks, which are often fanciful and complex in composition and therefore particularly difficult to remember correctly. A heightened level of attention offers little protection where the consumer does not even realise that their recollection of the earlier mark is inaccurate.
Context Dependency of the Level of Attention
The level of attention is not a static criterion, but highly situational and context-dependent: it varies according to the purchasing situation (at home, in the pharmacy, in a rush or in a calm environment) and even between individual consumers. If this factor is to be applied at all, its context must be clearly defined and related to the specific facts of the case. The EUIPO Board of Appeal’s decision failed to anchor the assessment in the relevant context and thus did not sufficiently support its finding of a heightened level of attention.
Placing the Case in Existing Case Law
The question of the level of attention in the pharmaceutical sector is not new – European and national courts have traditionally attributed heightened diligence to the medical public, thereby raising the threshold for likelihood of confusion. At the same time, the case law shows that likelihood of confusion may exist even among supposedly attentive consumers, particularly where trade mark elements are nearly identical. The assessment of short word marks and the significance of the beginning and end of a mark are also relevant here – ARMUNIA and ARYUNA share four letters as well as the same beginning and ending.
Comparison: Assessment Standards for Pharmaceutical Trade Marks
Practical Relevance for Trade Mark Owners
The outcome of the case carries significant strategic implications for pharmaceutical companies and owners of pharmaceutical trade marks: if the General Court follows the applicant’s reasoning, the scope of protection of earlier pharmaceutical marks would be strengthened and the threshold for likelihood of confusion lowered. This would have direct consequences for trade mark filing strategies, freedom-to-operate analyses and the assessment of conflict situations across the entire healthcare and life sciences sector. Questions of genuine use of pharmaceutical trade marks – for example in the context of marketing authorisation – remain closely linked to these developments.
Outlook
Case T-591/24 has the potential to establish a more nuanced assessment of the level of attention in pharmaceutical trade mark law and to bring the principle of imperfect recollection back into sharper focus. As a European patent and trade mark attorney boutique, we closely monitor these proceedings on behalf of our healthcare and life sciences clients and advise on the strategic consequences for trade mark portfolios and IP protection strategies.
