A market in transition: why is it increasingly difficult to distinguish between pharmaceuticals and cosmetics?
The traditional boundaries between the pharmaceutical and cosmetic sectors are becoming increasingly blurred, due in large part to the growing convergence of distribution channels and marketing strategies. Moreover, evolving market trends have led to the emergence of “hybrid” product categories – items believed to have curative or therapeutic (i.e. pharmaceutical) properties, despite being primarily aesthetic in nature.
Within this shifting landscape – which heightens the risk of brand confusion and legal disputes – the Report clarifies when two products falling under these broad categories may be considered similar for the purposes of assessing the likelihood of confusion between trademarks.
The analysis provides concrete tools for stakeholders to ensure effective trademark protection and to help prevent potential conflicts between similar signs in this space.
How do EU Laws define pharmaceuticals and cosmetics?
In drawing the line between pharmaceuticals (Class 5) and cosmetics (Class 3), the Report adopts definitions from European legislation:
- Pharmaceutical products, as defined in Directive 2001/83/EC, Article 1(2), are substances or combinations of substances intended to treat, prevent, or diagnose diseases, or to modify physiological functions through pharmacological, immunological, or metabolic action.
- Cosmetic products, as per Regulation (EC) No. 1223/2009, Article 2(1)(a), are substances or mixtures intended for external use on the human body (e.g. skin, hair, nails) or on the teeth and oral mucosa, for the sole or primary purpose of cleaning, perfuming, altering appearance, protecting, maintaining condition, or correcting body odors. Notably, products intended to be ingested, inhaled, injected, or implanted are explicitly excluded from the definition of cosmetics (Article 2(2)).
While these definitions appear clear, they leave room for interpretation – particularly when it comes to multifunctional products such as cosmeceuticals (cosmetics with bioactive ingredients), which are often at the centre of trademark disputes.
When can pharmaceuticals and cosmetics be considered similar?
Through a systematic analysis of European case law, the Report outlines the main criteria for assessing the similarity between pharmaceuticals (Class 5) and cosmetics (Class 3). Below is a summary of the key findings:
1. Pharmaceuticals vs Cosmetics (excluding perfumes and essential oils) – General Categories
The case law reflects a general consensus in recognizing a certain degree of similarity between the broad categories of pharmaceuticals and cosmetics (with the exception of perfumes and essential oils).
The Court of Justice typically identifies a low degree of similarity, while the Boards of Appeal assess similarity as ranging from low to medium.
This assessment is based on factors such as shared purpose (e.g. skin or hair care), similar distribution channels (pharmacies, specialized stores), overlapping target consumers (general public), comparable form (gel, cream), similar modes of application (external use) and, in some cases, the same commercial origin (e.g. products sold under the same brand). Where common commercial origin is demonstrated, a medium degree of similarity may be justified.
2. Topical pharmaceuticals vs Cosmetics (excluding perfumes and essential oils)
Topically applied pharmaceuticals and certain cosmetics often share form, function, method of use, sales channels and ingredients. As a result, case law typically assigns a medium level of similarity in these cases.
3. Pharmaceuticals with systemic therapeutic effects (non-topical) vs Cosmetics
Pharmaceuticals intended for internal use or systemic effects are generally dissimilar from cosmetics. These products differ in purpose, method of use, distribution channels and target consumers, and they are not considered complementary.
4. Pharmaceuticals vs Perfumery Products
Medicines and perfumery items (including deodorants and essential oils) are generally dissimilar, as they serve different functions, are sold through different channels and cater to different audiences.
Only in rare cases – such as certain deodorants or essential oils – has a low degree of similarity been recognized, and even then, only as part of broader contextual evaluations.
Conclusions and practical recommendations for trademark owners
While the legal distinction between pharmaceuticals and cosmetics is well established, real-world practices often blur the lines – especially with the rise of hybrid products like cosmeceuticals.
This overlap can have a direct impact on trademark protection, particularly when it comes to evaluating product similarity and the likelihood of consumer confusion.
In this increasingly dynamic and competitive landscape, companies should consider adopting targeted strategies to manage and protect their brand portfolios effectively. In particular:
- Choose distinctive brands: Selecting more distinctive, less descriptive trademarks can reduce the risk of confusion, especially in markets saturated with similar or hybrid products.
- Conduct comprehensive clearance searches: Carry out prior rights searches covering both Class 3 (cosmetics) and Class 5 (pharmaceuticals) to identify potential conflicts, even where the product categories seem unrelated.
- Strategic trademark registration: Consider registering in both Classes 3 and 5 to ensure broader protection, especially for multifunctional products (e.g. a cosmetic with secondary therapeutic benefits or a topically applied pharmaceutical).
- Monitor the market and registries: Ongoing surveillance of the market and trademark filings in both classes is essential for detecting and addressing potential infringements early.
- Regularly reassess your IP portfolio: As the market evolves and new hybrid products emerge, periodically review your trademark portfolio to ensure it covers all relevant product lines adequately.
Finally, these considerations should be embedded within a company’s broader strategic planning – especially when developing new products. Setting up intellectual property protections early in the product development cycle not only reduces legal risk but can also serve as a significant competitive advantage in a crowded and tightly regulated market.
To effectively navigate these issues and develop a robust protection strategy, companies are encouraged to consult with intellectual property experts who have sector-specific experience. We remain at your full disposal for any support you may need in this regard.
