Can a younger Union trademark ban an older, licensed product name?

You have been using a product name for your veterinary drug for years, approved by the competent authorities. Suddenly, a competitor with a more recent European trademark demands that you stop using your name. This situation leads to a crucial question: does a Union trademark always take precedence over an older, local right that is not a trademark? The answer is nuanced, but in a judgment of 18 September 2025, the president of the Dutch-speaking business court of Brussels ruled that a marketing authorization (MA) can indeed function as a prior right limiting the effect of a later Union trademark.

The facts: a conflict between a trademark and a license

The case revolved around two pharmaceutical companies active in veterinary medicine. Plaintiff, Huvepharma, is the holder of the Union trademark "DOXORAL," registered in 2012 and protected throughout the European Union for veterinary products.

The defendant, the Belgian company EMDOKA, has been marketing a veterinary drug under the name "DOXYRAL" for 25 years. This name has not been registered as a trademark, but it is the official one used by the Federal Agency for Medicines and Health Products (FAMHP) approved designation under marketing authorization (MA).

After previous attempts by EMDOKA to register "DOXYRAL" as a trademark and have the trademark "DOXORAL" declared invalid by the intellectual property authorities (BOIP and EUIPO) failed, Huvepharma took the matter to the injunction court. It demanded an immediate ban on the use of the name DOXYRAL throughout the EU, for infringement of its trademark rights. EMDOKA defended and in turn filed a counterclaim to have the DOXORAL trademark declared invalid after all.

Enterprise court decision

The president of the enterprise court, sitting as in summary proceedings, delivered a judgment in two parts: on the counterclaim for annulment and on the main claim for injunction.

The counterclaim: the DOXORAL trademark remains valid

The president rejected EMDOKA's request to declare the mark DOXORAL invalid. The president ruled that despite the possible reference of "DOX" to the active ingredient doxycycline and "ORAL" to the method of administration, the trademark as a whole constitutes a fantasy name. It requires a mental effort on the part of the public to see the name as merely descriptive, which makes it sufficiently distinctive to act as a trademark.

Interestingly, the president also rejected Huvepharma's arguments that this counterclaim was time-barred or that EMDOKA had forfeited its right by accepting earlier decisions. The president confirmed that a nullification claim on absolute grounds (such as lack of distinctiveness) serves the public interest and is therefore unbarred.

The main claim: no injunction order against DOXYRAL

At the heart of the case was Huvepharma's injunction claim. The president rejected this claim and ruled that EMDOKA could continue to use the DOXYRAL name in Belgium.

The president's reasoning is as follows:

• An MA creates a right: A marketing authorization is not merely a set of obligations. It grants the holder a "publicly structured legal status": the right to market a product under the approved name.
• An older right of local significance: This right to use the name DOXYRAL existed long before the Union trademark DOXORAL was filed. Therefore, it qualifies as an "earlier, law-recognized position with local scope" within the meaning of Article 138 of the Union Trademark Regulation (EUTMR).
• Trademark law does not intersect with pharmaceutical law: The President emphasized that the Union trademark law is not intended to undermine the operation of mandatory pharmaceutical legislation. The name stability of medicines is crucial for public health, traceability and safety.

The President concluded that the trademark owner cannot invoke its right of prohibition against a party acting on the basis of an older, nationally recognized and regulatively mandated right. The Union trademark and the licensed product name must coexist (coexistence).

Legal analysis and interpretation

This ruling is an important signal for regulated industries. It illustrates that Union trademark law, despite its uniform nature, does not confer an absolute monopoly that sweeps all prior rights off the table. The ruling confirms that the concept of "prior right" within the meaning of Article 138 UMVo is broader than just classical intellectual property rights such as a trade name or copyright. A public license that mandates a name use can also act as a shield against a later trademark.

The court made a clear distinction between the defensive function of an older right (defending against an injunction claim) and an offensive function (having a younger trademark declared invalid). EMDOKA succeeded in the former, but not in the latter. This shows that the threshold for enforcing coexistence is lower than the threshold for having a registered trademark completely removed from the register.

In addition, confirming that claims for annulment on absolute grounds are not subject to a statute of limitations is a matter of principle. The public interest in keeping descriptive signs available to all takes precedence over the legal certainty of the individual trademark owner.

What this specifically means

• For the holder of a licensed product name: This ruling is reassuring. A marketing authorization (MA) is a strong defense against a newer trademark. You are not without rights simply because you have not registered the name as a trademark. However, it is still advisable to consider trademark registration for stronger, positive protection.
• For the holder of a Union trademark: A freedom-to-operate analysis must go beyond trademark registries. Especially in regulated industries such as pharmaceuticals, it is crucial to also check product databases and licensing registries. A trademark that appears "available" may nevertheless encounter the limits of older, locally licensed product names in practice.
• For the pharmaceutical sector: The ruling validates the stability and legal weight of the MA system. Investments in a government-approved product name are thus better protected against subsequent trademark law claims, which enhances legal certainty.

FAQ (frequently asked questions)

Do I always have to register my FAMHP-approved product name as a trademark?
While this ruling shows that an MA can be a defensive shield, a trademark registration is highly recommended. Only a trademark registration gives you the exclusive right to prohibit others from using a similar name. Without a trademark registration, you can only defend yourself.

What exactly is an "elder right of local significance"?
This is a right that existed in a specific part of the EU (e.g. Belgium) before a Union trademark was applied for. This can be a trade name, but as this case shows, also a right arising from a specific legal regime, such as a license to sell a product under a certain name.

Does this ruling also apply to other regulated products, such as biocides or dietary supplements?
The principle of the ruling can potentially be extended to other sectors where a product name is part of a mandatory, government-issued license. However, the concrete application will always depend on the specific regulations in that sector.

Conclusion

This ruling by the Brussels Enterprise Court strikes a crucial balance between Union trademark law and national, regulatory obligations. An older, local, state-licensed right in Belgium can limit the effect of a later Union trademark, making coexistence necessary. It shows that a trademark right, however strong, does not exist in a vacuum and must take into account the realities of regulated markets.