General Court of the European Union (EuG): No likelihood of confusion between "Cardioflow" and "Cardioform" for medical devices

The General Court of the European Union (EuG) decided on 6 November 2024, Az. T-1146/23, that there is no likelihood of confusion between the word marks "Cardioflow" and "Cardioform".

The action was brought by W. L. Gore & Associates Inc., which holds the mark "Cardioform" for implant materials for use in surgery [prostheses]. It objected to the registration of the mark "Cardioflow" of Angiokard med. Spritzguß GmbH for sterile, medical disposable devices used, inter alia, in cardiology, anaesthesia and surgery.

Background to the proceedings

Angiokard med. Spritzguss GmbH applied in 2019 for registration of the mark "Cardioflow" for sterile, medical disposable products for angiography, cardiology, anaesthesia, surgery, infusion technology, dental and urological applications and their components. W. L. Gore & Associates Inc. filed an opposition and cited its earlier Union mark "CARDIOFORM" registered for surgical implant materials. The opposition was based on Article 8(1)(b) of the Union Trade Mark Regulation, which prohibits registration if there exists a likelihood of confusion with an earlier mark.

The Opposition Division of the EUIPO partially upheld the opposition and found that for certain products, in particular those for dental and urological applications, there was a likelihood of confusion. However, regarding the other medical disposable products, the opposition was rejected. The applicant subsequently filed an appeal with the Board of Appeal of the EUIPO, which rejected the opposition in its entirety.

Judgment of the EuG

The EuG confirmed the decision of the Board of Appeal and found that there is insufficient similarity between the marks to establish a likelihood of confusion. The court's main arguments were:

1. Low similarity of the goods: Although both marks are registered or claim protection for medical devices, there are clear differences in the type of products. "CARDIOFORM" refers to implant materials that remain permanently in the body, whilst "Cardioflow" is used for disposable products that are disposed of after use. Although both are used in a medical context, they differ significantly in their specific use.
2. Low similarity of the signs: Both marks contain the word "Cardio", which is, however, regarded as descriptive of cardiological products. The additional word elements "form" and "flow" differ clearly both visually and phonetically. The court emphasised that "Cardio" has only low distinctive character due to its descriptive nature, which means that the remaining elements are decisive for the assessment of similarity.
3. Specialist public with high level of attention: The relevant purchasers are medical professionals who, due to their professional background, exercise a high degree of attention. This further reduces the risk of confusion, as they perceive and differentiate marks more consciously.

The EuG dismissed the action and confirmed the EUIPO's decision that there is no likelihood of confusion between the marks "Cardioflow" and "CARDIOFORM".

Conclusion

This judgment underscores that descriptive terms, such as "Cardio" in this case, cannot be monopolised. Overall signs that are registrable but convey descriptive content, as a rule, have only a narrow scope of protection.