What is the minimum distance between pharmaceutical trademarks of different origins?

Abstract

The study examines the minimum degree of differential distinctiveness required between trademarks relating to pharmaceutical products of different origins. It contrasts the two registration systems to which such marks are subject — that of Law nº 9.279/96, applied by the INPI, and that of health legislation, in particular Law nº 6.360/76 and the ANVISA resolutions, among them RDC nº 333 and RDC nº 96/08 — drawing also on earlier legislation, on trademark scholarship and on Brazilian case law. It discusses the distinction between prescription-only and over-the-counter medicines, the average consumer test, the use of elements in the public domain such as the active ingredient and the therapeutic purpose, the symbolic proximity between marks covering distinct therapeutic purposes, and the role of figurative elements and of product presentation in infringement proceedings. It holds that, in this segment, public policy favours the informational content of the mark over its evocative content, tolerating greater proximity between signs motivated by the product, while rejecting proximity not offset by an informational gain and confusion aggravated by non-verbal elements.