G.R. No. L-20635 March 31, 1966
ETEPHA, A.G., petitioner, vs. DIRECTOR OF PATENTS and WESTMONT PHARMACEUTICALS, INC., respondents.

FACTS

Respondent Westmont Pharmaceuticals, Inc. applied for the registration of the trademark “Atussin” for its medicinal preparation used in the treatment of cough. Petitioner Etepha, A.G. opposed the registration, claiming it would be damaged because “Atussin” is confusingly similar to its previously registered trademark “Pertussin,” also used on a preparation for treating coughs. Petitioner argued that the similarity would mislead the buying public and damage its goodwill.

ISSUE

May the trademark “Atussin” be registered, given the prior registration of the trademark “Pertussin”?

RULING

Yes, the trademark “Atussin” may be registered. The Supreme Court affirmed the decision of the Director of Patents. The Court held that “Atussin” is not confusingly similar to “Pertussin” under the doctrine of colorable imitation. The comparison of the two marks, considering their sound, appearance, and meaning as a whole, does not show a likelihood of confusion or deception among purchasers. The common component “tussin” is descriptive and generic, derived from the Latin “tussis” (cough), and thus cannot be exclusively appropriated. The prefixes “Per-” and “A-” create distinct impressions. The labels differ significantly in style, color, content, and general appearance. Phonetically, the words do not sound alike. Furthermore, the products are prescription medicines, dispensed through pharmacists, making mistaken purchase unlikely. Therefore, no trademark infringement exists.