Competing marks – co-existence agreement by parties may be insufficient to allow registration

biometrix

Biosensors Europe S.A. filed a trademark applications for Biometrix (TM Application Number 239619) as shown above, and and Biomatrix LTD. filed a word mark for Biomatrix Flex (TM Application Number 239622). Both firms make stents, particularly drug eluting stents, and related biomedical equipment.

The Israel Patent Office initiated a competing marks proceeding. The applicants requested coexistence, but the Deputy Commissioner, Ms Jacqueline Bracha ruled that the marks were confusingly similar and coexistence would not be in the public interest.  Assertions by the parties that they coexisted for 5 years without anyone being confused were ignored. The Deputy Commissioner’s reasoning was that the terms Biometrix and Biomatrix were virtually identical. The term flex would be seen as being a qualifier, indicating that the biomatrix in question was flexible. The Deputy Commissioner noted that in the UK, where, if the owners of competing marks are willing to coexist, the patent office has to allow both marks to register. However, in Israel, the public interest is over-riding.

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