Bayer wins Elevit trademark appeal
Bayer Healthcare has successfully appealed a trademark decision in which confusion between two health supplement products was "potentially dangerous" to pregnant women.
Bayer sells a vitamin and mineral supplement called Elevit, especially created for women who are pregnant, planning to become pregnant or breastfeeding.
But in July this year the Assistant Commissioner of Trademarks allowed DBC Health to register trademarks for its Eleviv product, which is a dietary and nutritional supplement.
Both products are similar but Eleviv's packaging featured a warning, "Do not take if pregnant or lactating".
Bayer appealed the Commissioner's trademark ruling in November this year, at which DBC did not wish to be heard.
Yesterday Justice Lowell Goddard reversed the decision in its entirety, and declined DBC's application to register trademarks for its Eleviv product.
Justice Goddard said the Eleviv mark was visually, aurally and conceptually similar to Elevit and was likely to cause confusion to consumers.
She said this also held a possible risk to pregnant or lactating women, as the two products would probably be sold in similar areas of a retail outlet.
"This is a potentially dangerous aspect, should confusion arise between the two products, as Elevit, a pharmacy only medicine, is intended specifically for use by pregnant or lactating women."
Bayer's Elevit was first registered in 1966 and was now registered in 145 countries.
It was an over-the-counter product sold in packs of 30 or 100 tablets, and was approved as a medicine in New Zealand in 2002.
Justice Goddard said the evidence established Elevit as a substantial international product.
The Eleviv product, by contrast, was sold in packs of 60 or 84 capsules, and no restriction was sought by Bayer in terms of where it might be sold.
- Fairfax Media