Priset för förväxling - En rättsvetenskaplig analys avseende förväxlingsbara läkemedelsvarumärken

Sammanfattning: Annually, around 100,000 patients in Sweden encounter healthcare-related injuries within hospital care, with an estimated 18,000 suffering from injuries attributed to incorrect medication treatment. Notably, nearly one-third of these injuries stem from medication confusion, often arising due to similarities in appearances or names of different medications. Trademark law primarily aims to prevent consumer confusion regarding the origin or economic connections of a product. However, when it comes to medications, a question emerges about the true nature of the risk. Is it the potential confusion in commercial origin, or is it the risk of consumers misunderstanding the medication itself, potentially exposing themselves to health risks? This essay seeks to delve into whether the assessment of confusion for pharmaceutical trademarks incorporates specific health considerations that distinguish it from the evaluation of other goods. It is especially crucial to explore whether Swedish legal practices align with those of the EU, given indications in Swedish preparatory works suggesting a more stringent assessment for pharmaceuticals. The investigation brings to light that pharmaceutical trademarks constitute a unique category within the confusion assessment framework, differing significantly from other trademarks. The EU Court of Justice has clarified that factors unrelated to the commercial origin of the trademark should not be considered in a confusion assessment. However, the same court acknowledges the significance of potential health risks, incorporating them into various aspects of the confusion assessment.