Case T-105/07: Action brought on 2 April 2007 — MarketTools v OHIM — Optimus-Telecomunicações (ZOOMERANG)
Date: 2007-06-09
Institutions: Court of First Instance
Subjects: EU trade mark, European Union Intellectual Property Office, action for annulment (EU), software, telecommunications, trade-mark law

9.6.2007

EN

Official Journal of the European Union

C 129/19

Secondly, the applicant submits that the Commission violated
the notion of Community interest and committed manifest
errors of appraisal, erred in law and violated its duty to state
reasons.

(1) Commission Regulation (EC) No 773/2004 of 7 April 2004 relating
to the conduct of proceedings by the Commission pursuant to Arti-
cles 81 and 82 of the EC Treaty (OJ 2004 L 123, p. 18).

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 did not correctly assess
the similarity of the goods and services and the trade marks in
question.

Action brought on 2 April 2007 — MarketTools v OHIM
— Optimus-Telecomunicações (ZOOMERANG)

(Case T-105/07)

(2007/C 129/33)

Action brought on 11 April 2007 — Alcon v OHIM —
*Acri.Tec (BioVisc)

(Case T-106/07)

(2007/C 129/34)

Language in which the application was lodged: English

Language in which the application was lodged: English

Parties

Parties

Applicant: MarketTools, Inc. (San Francisco, United-States) (repre-
sented by: W. von der Osten-Sacken and A. González Hähnlein,
lawyers)

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

Other party to the proceedings before the Board of Appeal: Optimus-
Telecomunicações, SA (Maia, Portugal)

Form of order sought

— Annul

the decision of

the Second Board of Appeal of

25 January 2007 (Appeal No R 253/2006-2);

— order Optimus-Telecomunicações S.A. to bear the costs of

the proceedings.

Pleas in law and main arguments

Applicant for the Community trade mark: The applicant

Community trade mark concerned: The word mark ‘ZOOMERANG’
for goods and services in classes 9, 35 and 42 — application
No 1 603 950

Proprietor of the mark or sign cited in the opposition proceedings:
Optimus-Telecomunicações, SA

Mark or sign cited: The national word and figurative marks
‘BOOMERANG’ for goods and services in classes 9, 16, 35, 37,
38 and 42

Applicant: Alcon, Inc. (Hünenberg, Switzerland) (represented by:
M. Graf, lawyer)

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

Other party to the proceedings before the Board of Appeal: *Acri.Tec
AG Gesellschaft für ophthalmologische Produkte (Hennigsdorf,
Germany)

Form of order sought

— The decision of the Second Board of Appeal of the Office
for Harmonisation in the Internal Market (Trade Marks and
Designs) of 8 February 2007 in Case R 660/2006-2 Alcon,
Inc. v. OHIM (BioVisc) be annulled insofar as it dismissed
the opposition of Alcon,
Inc. against CTM application
3 651 809 ‘BioVisc’;

— the Office for Harmonisation be ordered to bear its own

costs and to pay those of the applicant.

Pleas in law and main arguments

Applicant for the Community trade mark: *Acri.Tec AG Gesellschaft
für ophthalmologische Produkte

Community trade mark concerned: The word mark ‘BioVisc’ for
goods in class 5 — application No 3 651 809

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

Mark or sign cited: The Community and international word
marks ‘PROVISC’ and ‘DUOVISC’ for goods in class 5

Decision of
entirety

the Opposition Division: Opposition upheld in its

Decision of
entirety

the Opposition Division: Opposition upheld in its