Case T-258/08: Action brought on 30 June 2008 — Rath v OHIM — Portela & Ca. (DIACOR)
Date: 2008-06-30
Institutions: Court of First Instance
Subjects: EU trade mark, European Union Intellectual Property Office, action for annulment (EU), food supplement, pharmaceutical product, trade-mark law, vitamin

C 223/54

EN

Official Journal of the European Union

30.8.2008

Action brought on 30 June 2008 — Rath v OHIM —
Portela & Ca. (DIACOR)

(Case T-258/08)

(2008/C 223/95)

other party to the proceedings before it had submitted sufficient
evidence for the proof of use of the earlier mark in Portugal for
all the goods for which it has been registered; and (iii) Infringe-
ment of Article 8(1) of Council Regulation No 40/94 as the
conflicting trade marks show no visual, phonetic or conceptual
similarities, such as to trigger a likelihood of confusion.

Language in which the application was lodged: English

(1) Regulation (EC) No 2868/1995 of the Commission of 13 December
1995 implementing Council Regulation (EC) No 40/94 on the
Community trade mark (OJ 1995 L 303, p. 1).

Parties

Applicant: Matthias Rath (Cape Town, South Africa) (represented
by: U. Vogt, C. Kleiner and S. Ziegler, lawyers)

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

Action brought on 3 July 2008 — Indo Internacional v
OHIM — Visual (VISUAL MAP)

Other party to the proceedings before the Board of Appeal: Portela &
Ca., SA (Mamede do Coronado, Portugal)

(Case T-260/08)

(2008/C 223/96)

Form of order sought

Language in which the application was lodged: English

— Annul the decision of the Second Board of Appeal of the
(Trade
case

Office for Harmonisation in the Internal Market
Marks
of 30 April 2008 in
R 1630/2006-2; and

and Designs)

Parties

— Order the defendant and, if the case may be, the other party
to the proceedings before the Board of Appeal to pay the
costs.

Applicant: Indo Internacional, SA (Sant Cugat del Vallės, Spain)
(represented by: X. Fàbrega Sabaté and M. Curell Aguilà,
lawyers)

Pleas in law and main arguments

Applicant for the Community trade mark: The applicant

Community trade mark concerned: The word mark ‘DIACOR’ for
goods and services in classes 5, 16 and 41

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

Other party to the proceedings before the Board of Appeal: Visual SA
(Saint Apollinaire, France)

Proprietor of the mark or sign cited in the opposition proceedings: The
other party to the proceedings before the Board of Appeal

Form of order sought

Mark or sign cited: Portuguese trade mark registration No 137 311
of the mark ‘DIACOL’ for goods in class 79, in accordance with
the national classification of goods in force at the time of regis-
tration

Decision of the Opposition Division: Upholding of the opposition
for all the contested goods in class 5

Decision of the Board of Appeal: Dismissal of the appeal

Pleas in law: (i) Infringement of Article 22(6) of Commission
Regulation No 2868/95 (1) as several documents submitted by
the other party to the proceedings before the Board of Appeal
were not in English and no translation had been provided to the
applicant in order to assess the content of the evidence of use;
(ii) Infringement of Article 43(2) and (3) of Council Regulation
No 40/94 as the Board of Appeal erred in its opinion that the

— Annul the decision of the First Board of Appeal of the
(Trade
Office for Harmonisation in the Internal Market
Marks and Designs) of 15 April 2008 in case R 700/2007-1;
and

— Order the defendant to pay the costs.

Pleas in law and main arguments

Applicant for the Community trade mark: The applicant

Community trade mark concerned: The word mark ‘VISUAL MAP’
for services in class 44 — application No 393 2936

Proprietor of the mark or sign cited in the opposition proceedings: The
other party to the proceedings before the Board of Appeal