RE "HICALIQ", THE TRADE MARK

RE "HICALIQ", THE TRADE MARK

The High Court upheld the Hearing Officer's finding that there was no reasonable likelihood of deception or confusion between HICALIQ (intravenous parenteral solution) and HYCAL (demineralized glucose drink); the products are distinct in form, use and consumer context and any danger of harmful confusion in the pharmaceutical context is remote and would require multiple failures, so the court refused to exercise discretion under Section 13(2) and allowed registration.

Citation
RE "HICALIQ", THE TRADE MARK
Parties
Applicant / Respondent: Terumo K.K.; Opponent / Appellant: Beecham Group Plc (local representative)
Court
Court of First Instance
Jurisdiction
Hong Kong
Judgment Date
15 July 1994
Case Number
HCMP638/1994
Procedural Posture
Trade Mark Opposition Appeal / High Court Appeal Decision
Outcome
Appeal dismissed; registration of HICALIQ allowed
Legal Topics
Likelihood of Confusion, Registration, Distinctiveness, Statutory Discretion, Public Safety
Source Language
EN
Trade Marks Intellectual Property Pharmaceutical Regulation Likelihood of Confusion Registration Distinctiveness Statutory Discretion Public Safety

Case Brief

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Parties

Terumo K.K.

Applicant / Respondent

Beecham Group Plc (local representative)

Opponent / Appellant

Procedural Posture

Trade Mark Opposition Appeal / High Court Appeal Decision

Legal Issues

  1. 1 Whether registration of HICALIQ would be likely to cause deception or confusion with HYCAL under Section 12 and Section 20 of the Trade Marks Ordinance
  2. 2 Whether registration should be refused in the exercise of discretion under Section 13(2) because of public safety risks associated with pharmaceutical confusion
  3. 3 Proper test for likelihood of confusion (extent of number of persons required and relevance of potential harm)

Ratio Decidendi

The High Court upheld the Hearing Officer's finding that there was no reasonable likelihood of deception or confusion between HICALIQ (intravenous parenteral solution) and HYCAL (demineralized glucose drink); the products are distinct in form, use and consumer context and any danger of harmful confusion in the pharmaceutical context is remote and would require multiple failures, so the court refused to exercise discretion under Section 13(2) and allowed registration.

Court Disposition

Appeal dismissed; registration of HICALIQ allowed

Orders

  • Order Nisi that the Appellant pay the Respondent's costs to be taxed if not agreed