# C_2012165EN.01002001.xml

| 9.6.2012 | EN | Official Journal of the European Union | C 165/20 |
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9.6.2012

EN

Official Journal of the European Union

C 165/20

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Action brought on 5 March 2012 — Bial — Portela v OHIM — Probiotical (PROBIAL)

(Case T-113/12)

2012/C 165/35

Language in which the application was lodged: English

Parties

Parties

Applicant: Bial — Portela & Ca, SA (São Mamede do Coronado, Portugal) (represented by: B. Braga da Cruz and J. Pimenta, lawyers)

Applicant:

Defendant: Office for Harmonisation in the Internal Market (Trade Marks and Designs)

Defendant:

Other party to the proceedings before the Board of Appeal: Probiotical SpA (Novara, Italy)

Other party to the proceedings before the Board of Appeal:

Form of order sought

Form of order sought

| — | Annul the decision of the Fourth Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 20 December 2011 in case R 1925/2010-4; |
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Annul the decision of the Fourth Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 20 December 2011 in case R 1925/2010-4;

| — | Order the defendant to refuse the grant of the registration of Community trade mark No 2408128 ‘PROBIAL’; and |
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Order the defendant to refuse the grant of the registration of Community trade mark No 2408128 ‘PROBIAL’; and

| — | Order the other party to the proceedings before the Board of Appeal to pay the costs of the proceedings. |
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Order the other party to the proceedings before the Board of Appeal to pay the costs of the proceedings.

Pleas in law and main arguments

Pleas in law and main arguments

Applicant for a Community trade mark: The other party to the proceedings before the Board of Appeal

Applicant for a Community trade mark:

Community trade mark concerned: The figurative mark in dark blue and light blue ‘PROBIAL’, for goods in classes 1, 5 and 31 — Community trade mark application No 2408128

Community trade mark concerned:

Proprietor of the mark or sign cited in the opposition proceedings: The applicant

Proprietor of the mark or sign cited in the opposition proceedings:

Mark or sign cited in opposition: Portuguese trade mark registration No 155284 of the word mark ‘Bial’, for goods in class 5; the trade mark ‘Bial’ being well known in Portugal; Community trade mark registration No 1400183 of the figurative mark in black and white ‘Bial’, for goods and services in classes 3, 5 and 42; Spanish trade mark registration No 2026481 of the figurative mark in black and white ‘Bial’, for services in class 35; international registration No 490635 for the mark in standard characters ‘Bial’, for goods in class 5; emblem of establishment No 868 of the figurative sign ‘Bial’; Name of establishment No 35157 for the word ‘Bial’; logotype No 951 of the figurative sign ‘Bial’

Mark or sign cited in opposition:

Decision of the Opposition Division: Rejected the opposition

Decision of the Opposition Division:

Decision of the Board of Appeal: Dismissed the appeal

Decision of the Board of Appeal:

Pleas in law: Infringement of Article 8(1)(b) of Council Regulation No 207/2009, as the Board of Appeal wrongly assessed that the trademarks in question were not confusingly similar.

Pleas in law:

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