Case T-277/06: Action brought on 9 October 2006 — Omnicare v OHIM — Yamanouchi Pharma (OMNICARE)
Date: 2006-12-02
Institutions: Court of First Instance
Subjects: EU trade mark, European Union Intellectual Property Office, action for annulment (EU), pharmaceutical industry, trade-mark law

C 294/60

EN

Official Journal of the European Union

2.12.2006

Thirdly, the applicant invokes that the Commission infringed
essential procedural requirements by failing to analyse properly
the evidence in its file and failing to provide the applicant with
access to all relevant documents, thereby infringing the appli-
cant's rights of defence.

Decision of the Board of Appeal: Refusal of the application for
restitutio in integrum and declaration that the appeal was deemed
not to have been filed

Pleas in law: Misinterpretation of Article 78(5) of Council Regu-
lation No 40/94 in finding that an application for restitutio in
integrum cannot be made if the subject matter of the said appli-
cation concerns the failure to comply with the time limit set
out in Article 59 of the regulation.

Action brought on 9 October 2006 — Omnicare v OHIM
— Yamanouchi Pharma (OMNICARE)

(Case T-277/06)

(2006/C 294/120)

Language in which the application was lodged: English

Parties

Applicant: Omnicare Inc. (Covington, USA) (represented by: M.
Edenborough, Barrister)

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

Other party before the Board of Appeal: Yamanouchi Pharma
GmbH (Heidelberg, Germany)

Form of order sought

— The appeal by the appellant to the Court of First Instance

be allowed;

Action brought on 6 October 2006 — United Kingdom v
Commission

(Case T-278/06)

(2006/C 294/121)

Language of the case: English

Parties

Applicant: United Kingdom of Great Britain and Northern
Ireland (represented by: E. O'Neill, acting as agent, and H.
Mercer, Barrister)

Defendant: Commission of the European Communities

— the decision of

the Second Board of Appeal case No

R0446/2006-2 be annulled in its entirety;

Form of order sought

— the application for restitutio in integrum be remitted to the

Board of Appeal for reconsideration; and

— the Office pays to the appellant the costs incurred by it in
connection with this appeal before the Court of First
Instance.

Pleas in law and main arguments

Applicant for the Community trade mark: The applicant

Community trade mark concerned: Word mark ‘OMNICARE’ for
goods and services in classes 16 and 42 — application No
284 067

Proprietor of the mark or sign cited in the opposition proceedings:
Yamanouchi Pharma GmbH

Mark or sign cited: National figurative mark ‘OMNICARE’ for
services in classes 35, 41 and 42

Decision of
entirety

the Opposition Division: Opposition upheld in its

— Article 1 of Commission Decision 2006/554/EC on the
clearance of accounts presented by Member States in
respect of expenditure of the Guarantee Section of the
European Agricultural Guidance and Guarantee Fund be
annulled in so far as it excludes from Community financing
United Kingdom expenditure for the years 2001-2004 in
the sum of £1,351,441.25 in the audit field ‘Butterfats in
food processing’ on the grounds of ‘Insufficient quantity
controls on manufactured quantities’;

— the Commission be ordered to pay the costs incurred by

the United Kingdom.

Pleas in law and main arguments

The applicant seeks the partial annulment of the Commission's
Decision 2006/554/EC of 27 July 2006 excluding from Com-
munity financing certain expenditure incurred by the Member
the European Agri-
States under the Guarantee Section of
cultural Guidance and Guarantee Fund (EAGGF) (1) and in par-
ticular the part concerning the use of butterfats in food proces-
sing in the United Kingdom.