Case T-169/07: Action brought on 16 May 2007 — Longevity Health Products v OHIM — Celltech Pharma (Cellutrim)
Date: 2007-07-07
Institutions: Court of First Instance
Subjects: EU trade mark, European Union Intellectual Property Office, action for annulment (EU), pharmaceutical product, trade-mark law

C 155/40

EN

Official Journal of the European Union

7.7.2007

Action brought on 16 May 2007 — Longevity Health
Products v OHIM — Celltech Pharma (Cellutrim)

Action brought on 21 May 2007 — Volkswagen AG v
OHIM

(Case T-169/07)

(2007/C 155/72)

(Case T-174/07)

(2007/C 155/73)

Language in which the application was lodged: German

Language of the case: German

Parties

Parties

Applicant: Longevity Health Products Inc.
(represented by: J.E. Korab, Rechtsanwalt)

(Nassau, Bahamas)

Applicant: Volkswagen AG (Wolfsburg, Germany)
by S. Risthaus, Rechtsanwalt)

(represented

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

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

Other party to the proceedings before the Board of Appeal of OHIM:
Celltech Pharma GmbH & Co. KG

Form of order sought

Form of order sought

— declaration that the application is admissible;

— annulment of the decision of the First Board of Appeal of
7 March 2007 and dismissal of the application by Celltech
Pharma GmbH & Co. KG that Community trade mark regis-
tration No 3979036 be declared invalid; and

— order that

the Office for Harmonisation in the Internal

Market pay the costs.

Pleas in law and main arguments

Registered Community trade mark in respect of which a declaration of
invalidity has been sought: The word mark ‘Cellutrim’ for goods
and services in classes 3, 5 and 35 (Community trade mark
No 3979036).

Proprietor of the Community trade mark: The applicant.

Applicant for the declaration of invalidity: Celltech Pharma GmbH
& Co. KG.

Trade mark right of applicant for the declaration: The word mark
‘Cellidrin’ for goods in class 5.

Decision of the Cancellation Division: Cancellation of the Com-
munity trade mark concerned in relation to goods in class 5.

Decision of the Board of Appeal: Appeal dismissed.

Pleas in law: Faulty reasoning of the Board of Appeal, since there
is no likelihood of confusion between the conflicting marks.

— Annul the decision of the First Board of Appeal of the
Office for Harmonisation in the Internal Market
(Trade
Marks and Designs) of 7 March 2007, notified on 23 March
2007 (Case R 1479/2005-1);

— Order the defendant to pay the costs.

Pleas in law and main arguments

Community trade mark concerned: The word mark ‘TDI’ for goods
and services in classes 4, 7 and 37.

Decision of the Examiner: Refusal of the application.

Decision of the Board of Appeal: Dismissal of the appeal.

Pleas in law:

— Infringement of Article 62(2) of Regulation (EC) No 40/94
the Board of Appeal of

by disregarding the decision of
12 May 2003 in Case R 53/2002-4;

— Infringement of the first sentence of Article 74(1) of Regu-
lation No 40/94 by improperly examining the facts of its
own motion;

— Infringement of Article 7(1)(b) of Regulation No 40/94 by
deciding that the trade mark applied for is devoid of any
distinctive character;

— Infringement of Article 7(1)(c) of Regulation No 40/94 by
deciding that the mark applied for has a descriptive func-
tion;

— Infringement of Article 7(3) of Regulation No 40/94 by
deciding that the trade mark applied for has not become
distinctive in consequence of the use which has been made
of it.