Case T-493/07: Action brought on 28 December 2007 — GlaxoSmithKline v OHIM — Serono Genetics Institute (FAMOXIN)
Date: 2007-12-28
Institutions: Court of First Instance
Subjects: EU trade mark, European Union Intellectual Property Office, action for annulment (EU), pharmaceutical product, trade-mark law

23.2.2008

EN

Official Journal of the European Union

C 51/59

Action brought on 28 December 2007 — GlaxoSmithKline
v OHIM — Serono Genetics Institute (FAMOXIN)

Action brought on 31 December 2007 — IIC-Intersport
v OHIM — McKenzie
International Corporation

(Case T-493/07)

(2008/C 51/107)

Corporation (McKENZIE)

(Case T-502/07)

(2008/C 51/108)

Language in which the application was lodged: English

Language in which the application was lodged: English

Parties

Parties

Applicant: GlaxoSmithkline SpA (Verona, Italy) (represented by:
G. Richard, lawyer)

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

Other party to the proceedings before the Board of Appeal: Serono
Genetics Institute SA (Evry, France)

Form of order sought

— Annul

the decision of

the First Board of Appeal of
14 September 2007 in Case R 8/2007-1 and declare the
request for invalidation brought by the applicant to be well
founded;

— the applicant invites the Board to annul all cost orders made
against the applicant by the Office for Harmonisation in the
Internal Market, and to order the later to bear the costs of
the applicant.

Pleas in law and main arguments

Registered Community trade mark subject of
the application for a
declaration of invalidity: The Community word mark ‘FAMOXIN’
for goods and services in Class 5 — Application No 2 491 298

Proprietor of the Community trade mark: Serono Genetics Institute
SA

Party requesting the declaration of invalidity of the Community trade
mark: The applicant

Trade mark right of the party requesting the declaration of invalidity:
The national word mark ‘LANOXIN’ for goods in Class 5

Decision of the Cancellation Division: Rejected the application for
invalidation in its entirety

Decision of the Board of Appeal: Dismissed the appeal

IIC-Intersport

Applicant:
International Corporation GmbH
(Ostermundigen, Switzerland) (represented by: P.J.M. Steinhauser,
lawyer)

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

Other party to the proceedings before the Board of Appeal: The
McKenzie Corporation Ltd (Newcastle Upon Tyne, United
Kingdom)

Form of order sought

— Annul the appealed decision of the Second Board of Appeal
of the Office for Harmonisation in the Internal Market of
15 October 2007 in Case R 1425/2006-2 and confirm the
decision of
the Office for
Harmonisation in the Internal Market of 6 September 2006
by which the opposition of Intersport has been received in
respect of certain of the goods concerned.

the Opposition Division of

Pleas in law and main arguments

Applicant
Corporation Ltd

for

the Community

trade mark: The McKenzie

Community trade mark concerned: The Community figurative mark
‘McKENZIE’ for goods and services in Classes 18, 25, 36 and 37

Proprietor of the mark or sign cited in the opposition proceedings:
IIC-Intersport International Corporation GmbH

Mark or
sign cited: The earlier Community figurative mark
‘MCKINLEY’ for goods and services in Classes 18, 20, 22, 25
and 28 and the earlier Community word mark ‘MCKINLEY’ for
goods and services in Classes 12, 18, 20, 22, 25 and 28.

Decision of
partially

the Opposition Division: Upheld the opposition

Decision of the Board of Appeal: Rejected the opposition in its
entirety and allowed registration to proceed

Pleas in law: Infringement of Articles 8(1)(b) and 52 of Regu-
lation (EC) No 40/94.

Pleas in law: Infringement of Article 8(1)(b) of Council Regu-
lation (EC) No 40/94.