CANADA: Federal Court of Appeal Clarifies Confusion Analysis in the Health Care Context

The Federal Court of Appeal (the FCA)  has upheld a Federal Court decision finding that the drug trademark BYOOVIZ, owned by Samsung Bioepis Co., Ltd. and several Biogen entities (collectively, Samsung and Biogen), was confusing with the trademark BEOVU, owned by Novartis AG and Novartis Pharmaceuticals Canada Inc. (collectively, Novartis).

The FCA released its judgment in Samsung Bioepis Co., Ltd. v. Novartis AG, 2025 FCA 212,  on November 28, 2025. Both drugs are used to treat neovascular age-related macular degeneration, although they contain different active ingredients. Samsung and Biogen’s use infringed the BEOVU trademark (Trademarks Act, Section 20(1)) and Samsung and Biogen were also liable for passing off (Trademarks Act, Section 7(b)).

The FCA’s decision clarifies the proper approach to assessing confusion from the perspective of the hypothetical casual consumer, particularly in a health care context where the end consumer may not directly encounter the product’s packaging.

In reviewing the Federal Court’s decision, the FCA made two key findings:

1. Patients as relevant consumers: The FCA agreed that the relevant consumers included patients, ophthalmologists, and pharmacists. Importantly, the FCA confirmed that, for the purposes of a confusion analysis, the hypothetical casual consumer may include individuals who do not directly encounter the trademark as used by the trademark owner. Trademark law protects all consumers affected by confusion, not only direct purchasers viewing a product’s packaging. Although patients rely on health care professionals to prescribe, purchase, and administer the drugs, the FCA accepted that patients nevertheless exercise choice, including the ability to refuse treatment. As the ultimate end users of the products, patients are entitled to protection from trademark confusion.
2. Importance of verbal similarity in the health care setting: The FCA also held that the Federal Court correctly applied the confusion analysis and that its findings should not be reweighed on appeal. The Federal Court had found that BEOVU is a coined and inherently distinctive mark, and that the goods and channels of trade for both drugs were identical. Differences in packaging, pricing, and safety protocols were found to be irrelevant at the first-impression stage of the confusion analysis. When assessing the degree of resemblance between the two trademarks, the Federal Court acknowledged a moderate visual resemblance but placed greater emphasis on their phonetic similarity. This focus was justified given the importance of oral communication in clinical settings. The FCA found no error in this approach, noting that patients are typically introduced to drug names verbally through their health care providers.

This decision reinforces that, in the health care context, trademark confusion analysis must consider the perspective of all end users, including patients who may have little or no direct interaction with a drug’s packaging but who nonetheless rely on verbal communication from health care professionals. Pharmaceutical companies should therefore exercise heightened caution when selecting new trademarks, particularly for products administered in clinical settings.

Although every effort has been made to verify the accuracy of this article, readers are urged to check independently on matters of specific concern or interest. Law & Practice updates are published without comment from INTA, except where it has taken an official position. 

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