2

The background to the dispute is summarised as follows in paragraphs 1 to 9 of the judgment under appeal: ‘1 On 4 April 2008 [Isdin] filed an application for registration of a Community trade mark at [OHIM] pursuant to Council Regulation (EC) No 40/94 of 20 December 1993 on the Community trade mark (OJ 1994 L 11, p. 1), as amended (replaced by Council Regulation (EC) No 207/2009 of 26 February 2009 on the Community trade mark (OJ 2009 L 78, p. 1)). The application related to the registration of the word sign ZEBEXIR. 2 The goods in respect of which registration was sought fall within Classes 3 and 5 of the Nice Agreement of 15 June 1957 concerning the International Classification of Goods and Services for the Purposes of the Registration of Marks, as revised and amended [“the Nice Agreement”], and correspond to the following description: — Class 3: “Bleaching preparations and other substances for laundry use; cleaning, polishing, scouring and abrasive preparations; (abrasive preparations) soaps; perfumery, essential oils, cosmetics, hair lotions; dentifrices”; — Class 5: “Pharmaceutical and veterinary preparations; sanitary preparations for medical purposes; dietetic substances adapted for medical use, food for babies; plasters, materials for dressings; material for stopping teeth, dental wax; disinfectants; preparations for destroying vermin; fungicides, herbicides.” 3 The Community trade mark application was published in Community Trade Marks Bulletin No 24/2008 of 16 June 2008. 4 On 9 September 2008, [Bial-Portela] filed a notice of opposition to the registration of the mark applied for on the basis of Article 8(1)(b) of Regulation No 40/94 (now Article 8(1)(b) of Regulation No 207/2009). 5 The opposition was based on the earlier Community word mark ZEBINIX, filed on 28 October 2003 and registered on 14 March 2005 for the goods and services in Classes 3, 5 and 42 corresponding, for each of those classes, to the following description: — Class 3: “Bleaching preparations and other substances for laundry use, cleaning, polishing, scouring and abrasive preparations, soaps, perfumery, essential oils, cosmetics, hair lotions, dentifrices”; — Class 5: “Pharmaceutical, veterinary and sanitary preparations; dietetic substances adapted for medical use, food for babies; plasters, materials for dressings; material for stopping teeth, dental wax; disinfectants; preparations for destroying vermin; fungicides, herbicides”; — Class 42: “Scientific and technological services and research and design relating thereto, industrial analysis and research services.” 6 The opposition was directed against all the goods in respect of which registration had been sought. 7 By decision of 3 September 2009, the Opposition Division rejected the opposition for all the goods, finding that there was no likelihood of confusion between the signs within the meaning of Article 8(1)(b) of Regulation No 207/2009. 8 On 13 October 2009, [Bial-Portela] filed an appeal with OHIM, under Articles 58 to 64 of Regulation No 207/2009, against the Opposition Division’s decision. 9 By [the contested decision], the First Board of Appeal of OHIM dismissed [Bial-Portela’s] opposition in its entirety. In particular, it found that the relevant public is composed of all European Union consumers and that the goods designated by the earlier mark and those designated by the mark applied for are identical. It was of the opinion that, notwithstanding the common elements, in particular the first syllable and the first three letters, the global phonetic and visual impressions produced by the signs at issue are different. The Board of Appeal considered that, as the conceptual comparison does not influence the assessment of the similarity of the signs, the visual and phonetic differences are sufficiently relevant to exclude a likelihood of confusion, even for identical goods.’