Case T-280/07: Action brought on 18 July 2007 — Sepracor v OHIM — Laboratorios Ern (LEVENIA)
Date: 2007-10-06
Institutions: Court of First Instance
Subjects: EU trade mark, European Union Intellectual Property Office, action for annulment (EU), medicinal product, pharmaceutical industry, trade-mark law

C 235/14

EN

Official Journal of the European Union

6.10.2007

Pleas in law: incorrect application of Article 8(1)(b) of Regulation
(EC) No 40/94 on the Community trade mark (1), inasmuch as
it found that the signs in conflict are phonetically, conceptually
and visually different.

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

in law:

Pleas
Article 74(1), in fine, of Regulation (EC) No 40/94 (1).

Infringement of Article 8(1), Article 73 and

(1) Council Regulation (EC) No 40/94 of 20 December 1993 on the

Community trade mark (OJ 1994 L 11, p. 1).

(1) Council Regulation (EC) No 40/94 of 20 December 1993 on the

Community trade mark (OJ 1994 L 11, p. 1).

Action brought on 20 July 2007 — Secure Computing v
OHIM — Investronica (SECUREOS)

Action brought on 18 July 2007 — Sepracor v OHIM —
Laboratorios Ern (LEVENIA)

(Case T-277/07)

(2007/C 235/25)

(Case T-280/07)

(2007/C 235/26)

Language in which the application was lodged: German

Language in which the application was lodged: English

Parties

Parties

Secure

Applicant:
United States)
Kunz-Hallstein, lawyers)

Computing

(Minnesota,
(represented by: H. P. Kunz-Hallstein and R.

Corporation

Applicant: Sepracor,
sented by: E. De Gryse, E. Cornu, D. Moreau, lawyers)

(Malborough, United States)

Inc.

(repre-

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:
Investronica, SA

to the proceedings before
Other party
Laboratorios Ern, SA (Barcelona, Spain)

the Board of Appeal:

Form of order sought

Form of order sought

— annul the decision of the First Board of Appeal of OHIM of

25 April 2007 in Case R 1063/2006-1;

— order the defendant to pay the costs.

Pleas in law and main arguments

Applicant for a Community trade mark: The applicant.

Community trade mark concerned: The word mark ‘SECUREOS’ for
goods in Class 9 (Application No 2 659 944).

Proprietor of the mark or sign cited in the opposition proceedings:
Investronica, S.A.

Mark or sign cited in opposition: The word mark ‘SECUREURO’
(Community trade mark No 2 126 290) for goods and services
in Classes 7, 9, 16, 35, 36, 37 and 42 and the figurative mark
‘secureuro’ (Community trade mark No 2 418 135) for goods
and services in Classes 7, 9, 16, 35 and 36.

— Annul the decision of the First Board of Appeal of the
Office of Harmonisation in the Internal Market of 18 April
2007 in Case R 155/2006-1;

— order the Office to pay the costs.

Pleas in law and main arguments

Applicant for the Community trade mark: Sepracor, Inc.

Community trade mark concerned: The Community word mark
‘LEVENIA’ for goods in class 5 — application No 2 563 799

Proprietor of the mark or sign cited in the opposition proceedings:
Laboratorios Ern, SA

Mark or sign cited: The national word mark ‘LEVELINA’ for goods
in classes 1 and 5

Decision of the Opposition Division: Rejected the opposition in its
entirety

Decision of the Opposition Division: Grant of the opposition and
rejection of the application.

Decision of the Board of Appeal: Upheld the appeal

6.10.2007

EN

Official Journal of the European Union

C 235/15

Pleas in law: The applicant claims that the contested decision
infringes Article 43 CTMR and Rule 22 CTMIR since the justifi-
cation of the First Board of Appeal, which held that the non-use
of the national trademark ‘LEVELINA’ was justified for a certain
type of pharmaceutical products and preparations, cannot
constitute a ‘proper
for non-use in the sense of
Article 43(2) CTMR. Moreover, the applicant contends that even
if the Court were to consider that the finding of the Board was
correct and that non-use was sufficiently justified, the contested
decision allegedly infringes Article 8(1)(b) CTMR.

reason’

trade mark No 2 065 100),
‘BLUE BBVA’ (Community trade
mark No 2 065 621), ‘TARJETA BLUE BBVA’ (Community trade
mark No 2 277 291), ‘QNTAME BLUE’ (Community trade mark
(Community trade mark
‘HIPOTECA BLUE’
No 2 391 878),
No 2 392 181),
‘HIPOTECA BLUE JOVEN’ (Community trade
mark No 2 794 998) and ‘MOTOR BLUE JOVEN’ (Community
trade mark No 3 060 878).

Decision of the Opposition Division: Opposition upheld and appli-
cation for registration rejected.

Decision of the Board of Appeal: Appeal dismissed.

Pleas in law: Infringement of Article 8(1)(b) of Regulation (EC)
No 40/94 (1), since the opposing marks are not similar and
there is therefore no likelihood of confusion.

(1) Council Regulation (EC) No 40/94 of 20 December 1993 on the

Community trade mark (OJ 1994 L 11, p. 1).

Action brought on 23 July 2007 — ecoblue v OHIM —
BBVA (Ecoblue)

(Case T-281/07)

(2007/C 235/27)

Language in which the application was lodged: German

Parties

Action brought on 24 July 2007 — Tailor v OHIM
(Gesäßtasche links)

Applicant: ecoblue AG (Munich, Germany) (represented by: C.
Osterrieth and T. Schmitz, 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:
Banco Bilbao Vizcaya Argentaria, SA

(Case T-282/07)

(2007/C 235/28)

Language of the case: German

Form of order sought

Parties

— annul the decision of the First Board of Appeal of OHIM of

25 April 2007 in Case No R 844/2006-1;

Applicant: Tom Tailor GmbH (Hamburg, Germany) (represented
by: S.O. Gillert, K. Vanden Bossche and F. Schiwek, lawyers)

— reject the opposition filed by Banco Bilbao Vizcaya Argen-

taria, S.A. against the ‘Ecoblue’ word mark applied for;

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

— order the defendant to pay the costs.

Pleas in law and main arguments

Applicant for a Community trade mark: The applicant.

Form of order sought

— annul the decision of the First Board of Appeal of the Office
for Harmonisation in the Internal Market (Trade Marks and
Designs) of 15 May 2007 (Case R 669/2006-1);

Community trade mark concerned: The word mark ‘Ecoblue’ for
services in Classes 35, 36 and 38 (application No 2 871 598).

— order the defendant to pay the costs.

Proprietor of the mark or sign cited in the opposition proceedings:
Banco Bilbao Vizcaya Argentaria, SA.

Pleas in law and main arguments

Mark or sign cited in opposition: The word marks ‘BLUE’ (Com-
munity trade mark No 1 345 974), ‘BLUE JOVEN’ (Community

Community trade mark concerned: The figurative mark ‘Gesäßtasche
links’ for goods in Class 25 (Application No 4 287 751).