Level of attention and its effects on risk of confusion and dilution: recent EU case law

The recent "ARYUNA" case (T-591/24) before the General Court of the EU (GC) has reignited the debate over the "heightened level of attention" attributed to consumers of pharmaceutical products. The case involved Sandoz’s opposition based on ARMUNIA against ARYUNA, which was unsuccessful before the EUIPO precisely on account of that presumed higher level of attention.

Before the GC, Sandoz argued that the assumption of an automatically increased degree of attention in the pharmaceutical sector did not always reflect the actual conditions under which consumers purchase and recall the products, and that the level of attention depended on context. The products at issue were tinctures and medicinal herbs. Sandoz submitted that these products are purchased rapidly, without extensive medical supervision, and under conditions resembling ordinary consumer purchasing behavior. Consumers could therefore not be expected to be able to differentiate between the two marks, and their level of attention was not as high as in the case of prescription drugs. Sandoz also argued once again that health concerns justified lowering the threshold for likelihood of confusion in cases concerning pharmaceuticals.

Despite those rather persuasive arguments, in its judgment of 1 July 2026, the GC confirmed the EUIPO rulings and reaffirmed that even for OTC pharmaceuticals, consumers are expected to pay a high level of attention since these goods affect their health. Arguments pertaining to public health belonged to the realm of regulatory law and not to that of trademarks.

Simultaneously, Greek case law has moved in a paradoxically restrictive direction regarding reputed pharma marks, relying on that same "heightened level of attention" to limit the scope of their protection when compared with trademarks designating pharmaceutical products. In particular, recent decisions by the Greek Administrative Courts concerning the PEPSI trademarks offer a significant case study on how local language peculiarities can, inter alia, influence the application of trademark principles regarding dilution and unfair advantage.

A Greek pharmaceutical company had registered a Greek trademark application for the figurative trademark 

Image

for goods in Class 5, namely dietetic products for digestive disorders. Pepsico filed an invalidity action, which the TMO rejected, finding there was no link due to the difference between pharmaceuticals and carbonated drinks and between the marks.

Pepsico’s action against this was successful in first instance; the court agreed that the marks were similar and that the goods under the contested mark were advertised and promoted as an effervescent drinkable preparation, an OTC product not necessarily sold in pharmacies. 

This, however, was overturned on appeal by the Athens Administrative Court of Appeals (Decision no. 1561/2025), which in essence agreed with the TMO and added that the relevant consumers exhibit a high level of attention when purchasing them. Furthermore, the Court stressed that the word PEPSI came from the Greek word “πεψη”/”pepsi”, which means “digestion” – an argument already found in the earlier Decision no. 641/2024 of the Administrative Supreme Court.

In that case, the opposition by Pepsico against the word mark “PEPSIFALK” for pharmaceutical products in Class 5 was ultimately unsuccessful, again, essentially, because PEPSI (“ΠΕΨΗ”) means “digestion” in Greek and therefore had a relevant meaning for pharmaceutical products suitable for treating gastrointestinal disorders. The Court also considered the different outlets where the goods are sold (supermarkets vs. pharmacies) and the fact that they were sold by pharmacists being specialized professionals, as well as the increased level of attention that the average consumers show in case of pharmaceutical products, even though the products at issue there were also OTC.

As a result, both on EU level and in Greece, likelihood of confusion or a link relevant for marks with a reputation is more difficult to show in the case of pharmaceutical products, independently of whether they are prescription drugs or OTC products, given the presumption that the relevant consumer pays particular attention. At the end of the day, this results in the limitation of the scope of protection of trademarks where pharma marks are involved. The fact that this heightened level of attention is a mere presumption without any empirical evidence is not enough to overturn it.