Case T-30/08: Action brought on 23 January 2008 — Winzer Pharma v OHIM — Oftaltech (OFTASIL)
Date: 2008-01-23
Institutions: Court of First Instance
Subjects: EU trade mark, European Union Intellectual Property Office, action for annulment (EU), pharmaceutical product, trade-mark law

C 79/30

EN

Official Journal of the European Union

29.3.2008

Form of order sought

Action brought on 23 January 2008 — Winzer Pharma v
OHIM — Oftaltech (OFTASIL)

— Annul

the decision of

the General Secretariat of

the
European Commission, in response to a confirmatory appli-
cation, rejecting the LPN's application for access to the docu-
ments concerning the procedure for the construction of the
dam in the lower Sabor.

— order the European Commission to pay all the costs of the

proceedings.

Pleas in law and main arguments

The information requested by the LPN from the Commission
should be regarded, from the outset, as information which can
and must be made available to it given the significant
environmental
interest which that entity seeks to defend and
take charge of in the context of the project to construct the
dam in the lower Sabor (Regulations Nos 1367/2006 (1) and
1049/2001 (2)).

interest

in disclosure

The derogation from the presumption that there is an overriding
public
(Article 6(1) of Regulation
No 1367/2006) does not relieve the Commission of the obliga-
tion to weigh up the basis of that interest in each individual
case. Any grounds for refusal must be interpreted restrictively
by the Commission.

that

It is not sufficient for the Commission to rely on a theoretical
model
the exception related to inspections and audits
prevails, without giving any additional, concrete reasons on a
in order to adopt a decision
document by document basis,
refusing access to all of the documents requested by the LPN.

The Commission refused partial access, basing that refusal on
general reasons without making any effort to divide the docu-
ments into ‘confidential and non-confidential parts’, on the basis
that access may not be given to any of the documents relating
to the inspection and investigation proceedings. However, the
Commission also has to make a concrete assessment here of the
information contained in the documents to which access is
sought.

(1) Regulation (EC) No 1367/2006 of the European Parliament and of
the Council of 6 September 2006 on the application of the provi-
sions of the Aarhus Convention on Access to Information, Public
Participation in Decision-making and Access to Justice in Environ-
mental Matters to Community institutions and bodies (OJ 2006
L 264, p. 13).

(2) Regulation (EC) No 1049/2001 of the European Parliament and of
the Council of 30 May 2001 regarding public access to European
Parliament, Council and Commission documents (OJ 2001 L 145,
p. 43).

(Case T-30/08)

(2008/C 79/59)

Language in which the application was lodged: German

Parties

Applicant: Dr. Robert Winzer Pharma GmbH (Berlin, Germany)
(represented by: S. Schneller, Rechtsanwalt)

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

Other party to the proceedings before the Board of Appeal of OHIM:
Oftaltech S.A. (L'Hospitalet de Llobregat, Spain)

Forms of order sought

— Annulment of the decision of the Board of Appeal of OHIM
of 29 October 2007 (R 599/2007-2) and the decision of
the Opposition Division of OHIM of 19 February 2007
(B 925 554);

— rejection of Community trade mark application No 4 229 274

‘OFTASIL’;

— holding of oral proceedings;

— an order that OHIM pays the costs of the proceedings;

— in the alternative, a referral of the case back to OHIM.

Pleas in law and main arguments

Applicant for a Community trade mark: Oftaltech S.A.

Community
‘OFTASIL’ for goods in Class 5 (application No 4 229 274)

trade mark concerned:

the figurative trade mark

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

Mark or sign cited in opposition: the word mark ‘Ophtal’ for goods
in Classes 5 and 10 (Community trade mark No 489 948), the
word mark ‘Ophtal’ for goods in Class 5 (German trade mark
No 800 702) and the word mark ‘OPHTAN’
for goods in
Classes 5, 29 and 30 (German trade mark No 303 349 033)

Decision of the Opposition Division: Rejected the opposition

Decision of the Board of Appeal: Dismissed the appeal

29.3.2008

EN

Official Journal of the European Union

C 79/31

Pleas in law: Infringement of Article 8(1)(b) of Regulation (EC)
40/94 (1) and of the principles to be applied under this provi-
sion to examine whether there is a likelihood of confusion.

Proprietor of the mark or sign cited in the opposition proceedings:
Pierre Fabre Médicament, S.A.

(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 18 January 2008 — Bastos Viegas v
OHIM — Pierre Fabre Médicament (OPDREX)

(Case T-33/08)

(2008/C 79/60)

Language in which the application was lodged: Spanish

Mark or sign cited in opposition: National word mark ‘OPTREX’
for goods in Class 5 (pharmaceutical goods).

Decision of
opposition, in respect of certain goods in Classes 5 and 10.

the Opposition Division: Upholding in part of the

Decision of the Board of Appeal: Annulment of the contested deci-
sion, in so far as it rejects the Community trade mark applica-
in
tion in respect of
Class 10.

‘surgical apparatus and instruments’

Pleas in law: Incorrect application of Article 8(1)(b) of Regulation
(EC) No 40/94 on the Community trade mark.

Action brought on 21 January 2008 — Berliner Institut für
Vergleichende Sozialforschung v Commission

Parties

Applicant: Bastos Viegas, AS (Penafiel, Portugal) (represented by:
G. Marín Raigal and P. López Ronda, 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:
Pierre Fabre Médicament, S.A.

Parties

(Case T-34/08)

(2008/C 79/61)

Language of the case: German

Form of order sought

— Annul the Decision of the Fourth Board of Appeal of OHIM
of 14 November 2007 (Case R 1238/2006-4) so as to
dismiss the opposition lodged by Pierre Fabre and grant
Community trade mark application No 2 429 249
‘OPDREX’ (figurative) and order the opponent to pay the
costs of both proceedings;

— Order the defendant to bear its own costs and to pay the

costs of the applicant;

— Order the intervener to bear its own costs and to pay the

costs of the applicant in these proceedings

Pleas in law and main arguments

Applicant for a Community trade mark: The applicant.

Community
(application for
Classes 5 and 10 and services in Class 35).

trade mark concerned: Figurative mark ‘OPDREX’
for goods in

registration No 2 429 249,

Applicant: Berliner Institut für Vergleichende Sozialforschung e.V.
(Berlin, Germany) (represented by: B. Henning, lawyer)

Defendant: Commission of the European Communities

Form of order sought

— Annul the Commission's decision of 16 November 2007
disallowing part of the applicant's costs in the context of the
‘Daphne Grant Agreement JAI/DAP/2004-2/052/W’;

— order the defendant to pay the costs.

Pleas in law and main arguments

In May 2005, the applicant and the Commission signed an
agreement on support for a project in connection with the
Daphne II programme (1). By letter of 16 November 2007, the
defendant
the
payment to the applicant that was still outstanding, in which
part of the applicant's costs were deemed to be ineligible for
support. The applicant brought the present action against that
decision.

the applicant a revised calculation of

sent