A case summary of HUM v HUM2N
Nutraceuticals, parapharmaceuticals, supplements, whatever you call them the market is booming. And with a £1.5 billion a year revenue and growth of 9% in 2022, it’s no surprise.
So what do you need to keep in mind when filing and protecting trade marks in this space? The recent case of HUM2N acts as a reminder.
In this UK decision (available here: Trade Mark Inter Partes Decision O/435/22 (ipo.gov.uk)) the Registrar considered arguments, in their simplest form, about whether an application for HUM2N would result in a likelihood of confusion with the earlier registered trade mark HUM, both for nutritional supplements. Spoiler alert: it didn’t. But perhaps not for the reasons you might think.
This is the rare type of case where a different conceptual meaning factors into the decision. Here, the earlier right was for ‘HUM’, articulated as ‘huhm’, as in humming a tune, and this was common ground between the parties. This mark belongs to Hum Nutrition, Inc, and they opposed the application for HUM2N.
HUM2N LTD argued that their application for HUM2N should be articulated as ‘HYOOMAN’ (human). Hum Nutrition, Inc disagreed and argued that it should be pronounced as “HUHM-TOO-EN” (HUM-2-N) – breaking down each element of the mark. The articulation of HUM2N was the most contentious element of the case – and at the crux of the findings.
Ultimately the Registrar found in favour of HUM2N LTD, allowing HUM2N through to registration on the basis that the trade mark would be pronounced as “HYOOMAN” (human) and the general public would resolve that the “2” in the mark as an “A”, failing to result in any confusion, direct or indirect.
As part of the assessment the Registrar found that supplements are purchased by the general public, at a relatively modest cost per packet or bottle. However, the average consumer will give some thought as to the properties and potential benefits of a given supplement when making a purchase and so [the hearing officer classed] the purchasing act in this case as requiring a medium degree of attention.
So the take home message is this: Pharmaceutical cases are not always complicated. You may not be arguing about specifics, whether you have a specialist consumer or the technical nature of your goods – you might just be arguing about good old fashioned similarity. And, if your marks are conceptually different, that might be enough to avoid a finding of similarity and confusion.