Case T-442/05: Action brought on  16 December 2005  — Biofarma v OHIM
Date: 2006-03-25
Institutions: Court of First Instance
Subjects: EU trade mark, European Union Intellectual Property Office, action for annulment (EU), pharmaceutical product, trade-mark law

25.3.2006

EN

Official Journal of the European Union

C 74/23

Form of order sought

Action brought on 16 December 2005 — Biofarma v
OHIM

— Annul the decision of the Fourth Board of Appeal of the
Office for Harmonisation in the Internal Market (OHIM) of
21 July 2005 (Case R 370/2004-4) relating to Opposition
Proceedings No. B 370959, notification of which was dated
13 October 2005; and

— order the OHIM to pay the costs.

(Case T-442/05)

(2006/C 74/45)

Language in which the application was lodged: Spanish

Pleas in law and main arguments

Applicant for the Community trade mark: The applicant

Community trade mark concerned: The word mark ‘LOMBARD
DIRECT’ for services in classes 35, 36 and 42 — application
No 1 523 992

Proprietor of the mark or sign cited in the opposition proceedings:
Lombard Risk Systems Limited and Lombard Risk Consultants
Limited

Mark or sign cited: The Community and national word marks
‘LOMBARD RISK’ and ‘LOMBARD GROUP OF COMPANIES’
for goods and services in classes 9, 36 and 41

Parties

Applicant: Biofarma (Neuilly-sur-Seine, France) (represented by:
Victor Gil Vega and Antonia Ruiz López, lawyers)

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

Other party to the proceedings before the Board of Appeal of OHIM:
Anca Health Care Limited

Form of order sought

The applicant claims that the Court should:

— annul the decision of the First Board of Appeal of OHIM of
26 September 2005 and declare that there is a likelihood of
confusion between the marks CAFON and DAFLON which
designate similar products;

— order OHIM to pay the costs,
applicant's representatives.

including the fees of the

Pleas in law and main arguments

Decision of the Opposition Division: Opposition upheld for part
of the contested services

Applicant for a Community trade mark: Surtech International Ltd.

Decision of the Board of Appeal: Dismissal of the appeal

Pleas in law: Infringement of Article 8(1)(b) of Council Regu-
lation No 40/94 as the Board of Appeal applied an incorrect
legal test when considering whether there was a likelihood of
confusion between the conflicting marks in as much as it
found it conceivable that confusion would occur and that the
possibility of confusion could not be excluded. According to the
applicant
the Board thereby reversed the burden of proof,
requiring the applicant to prove that there was no likelihood of
confusion. Furthermore, the Board of Appeal failed to give
proper reasons for its decision contrary to Article 73 of the
Regulation.

Community trade mark concerned: word mark ‘CAFON’ for goods
in Class 5 (pharmaceutical products and substances).

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

Mark or sign cited in opposition: word mark ‘DAFLON’ (registered
in Spain, Portugal, Benelux, Austria, France and Italy) for goods
in Class 5 (pharmaceutical products and substances).

Decision of the Opposition Division: opposition dismissed.

Decision of the Board of Appeal: application dismissed.

Pleas in law: incorrect application of Article 8(1)(b) of Regu-
lation No 40/94 on the Community trade mark.