Case T-287/08: Action brought on 25 July 2008 — Cadila Healthcare v OHIM — Laboratorios Inibsa (ZYDUS)
Date: 2008-07-25
Institutions: Court of First Instance
Subjects: EU trade mark, European Union Intellectual Property Office, action for annulment (EU), pharmaceutical product, trade-mark law

27.9.2008

EN

Official Journal of the European Union

C 247/17

the applicant argues that

In the alternative,
the Commis-
sion failed, in assuming there to be a State aid, to examine its
compatibility with the
light of
Article 87(3)(c) EC.

common market

in the

Action brought on 21 July 2008 — Fidelio KG v OHIM

(Case T-286/08)

(2008/C 247/33)

Finally, the applicant claims that the reasoning of the contested
decision is deficient in a number of respects.

Language in which the application was lodged: German

Action brought on 21 July 2008 — Securvita v OHIM
(Natur-Aktien-Index)

(Case T-285/08)

(2008/C 247/32)

Language in which the application was lodged: German

Parties

Applicant: Securvita Gesellschaft zur Entwicklung alternativer
Versicherungskonzepte mbH (Hamburg, Germany) (represented
by: M. van Eendenburg, Rechtsanwalt)

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

Form of order sought

— Vary the decision of the Fourth Board of Appeal of 26 May
2008 in Case R 525/2007-4 to the effect that it be ordered
that the word mark ‘Natur-Aktien-Index’ be registered as a
Community trade mark at the Office for Harmonisation in
the Internal Market.

Pleas in law and main arguments

Community trade mark concerned: the word mark ‘Natur-Aktien-
Index’ for goods and services in Classes 16, 36 and 42 (appli-
cation No 4 861 175).

Decision of the Examiner: rejection of the application.

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

Pleas in law: infringement of Article 7(1)(b) of Regulation (EC)
No 40/94 (1), since the mark applied for is not devoid of any
distinctive character.

Parties

Applicant: Fidelio KG (Linz, Austria)
acting as Agent)

(represented by M. Gail,

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

Form of order sought

— Annul the decision of the Fourth Board of Appeal of the
Office for Harmonisation in the Internal Market (Trade Marks
and Designs) of 21 May 2008 (case R 632/2007-4);

— Order the Office for Harmonisation in the Internal Market
(Trade Marks and Designs) to pay its own costs as well as
those of the applicant.

Pleas in law and main arguments

Community trade mark concerned: The word mark ‘Hallux’
goods in Classes 10, 18 and 25 (Application No 5 245 147).

for

Decision of the Examiner: Partial refusal of the application.

Decision of the Board of Appeal: Appeal partially upheld.

Pleas in law: Infringement of Article 7(1)(b) and (c) of Regulation
(EC) No 40/94 (1), as the registered marks concerning the goods
‘orthopaedic article’ and ‘footwear’ do not present any absolute
grounds for refusal.

(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 25 July 2008 — Cadila Healthcare v
OHIM — Laboratorios Inibsa (ZYDUS)

(Case T-287/08)

(2008/C 247/34)

Language in which the application was lodged: English

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

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

Parties

Applicant: Cadila Healthcare Ltd (Ahmedabad, India) (represented
by: S. Bailey, A. Juaristi and F. Potin, lawyers)

C 247/18

EN

Official Journal of the European Union

27.9.2008

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: Labora-
torios Inibsa, SA (Llissa de Vall, Spain)

Other party to the proceedings before the Board of Appeal: Novartis
AG (Basel, Switzerland)

Form of order sought

Form of order sought

— Annul the decision of the Second Board of Appeal of the
Office for Harmonisation in the Internal Market (Trade Marks
and Designs) of 5 May 2008 in case R 1322/2007-2; and

— Order

the defendant

to pay the costs,

including those

incurred in the proceedings before the Board of Appeal.

— Annul the decision of the Second Board of Appeal of the
Office for Harmonisation in the Internal Market (Trade Marks
and Designs) of 7 May 2008 in case R 1092/2007-2; and

— Order

the defendant

to pay the costs,

including those

incurred in the proceedings before the Board of Appeal.

Pleas in law and main arguments

Applicant for the Community trade mark: The applicant

Community trade mark concerned: The word mark ‘ZYDUS’ for
goods in classes 3, 5 and 10 — application No 3 277 662

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

Mark or sign cited: Spanish trade mark registration No 2 360 938
of the mark ‘CIBUS’ for goods in class 5; Spanish trade mark
registration No 2 360 939 of the mark ‘CIBUS’ for goods in
class 3

Decision of the Opposition Division: Uphold the opposition with
respect to all the contested goods

Decision of the Board of Appeal: Dismissal of the appeal

Pleas in law: The Board of Appeal erred in its decision that the
Opposition Division stated the reasons for its decision and,
thus, that Article 73 of Council Regulation 40/94 was not brea-
ched; the Board of Appeal erred in its decision that there was a
likelihood of confusion between the earlier trade marks and the
trade mark applied for, in breach of general principles of trade
marks law and, in particular, Article 8(1)(b) of Council Regu-
lation 40/94.

Action brought on 25 July 2008 — Cadila Healthcare v
OHIM — Novartis (ZYDUS)

(Case T-288/08)

(2008/C 247/35)

Pleas in law and main arguments

Applicant for the Community trade mark: The applicant

Community trade mark concerned: The word mark ‘ZYDUS’ for
goods in classes 3, 5 and 10 — application No 3 277 662

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

or

Mark
No 2 356 964 of the mark ‘ZIMBUS’ for goods in class 5

sign cited: Community

trade mark registration

Decision of the Opposition Division: Uphold the opposition with
respect to part of the contested goods

Decision of the Board of Appeal: Partial dismissal of the appeal

Pleas in law: The Board of Appeal erred in its decision that there
was a likelihood of confusion between the earlier trade mark
and the trade mark applied for, in breach of general principles
of trade mark law and, in particular, Article 8(1)(b) of Council
Regulation 40/94.

Action brought on 29 July 2008 — Deutsche BKK v OHIM

(Case T-289/08)

(2008/C 247/36)

Language in which the application was lodged: German

Language in which the application was lodged: English

Parties

Parties

Applicant: Deutsche BKK (Wolfsburg, Germany) (represented by
H.P. Schrammek, C. Drzymalla and S. Risthaus, acting as
Agents)

Applicant: Cadila Healthcare Ltd (Ahmedabad, India) (represented
by: S. Bailey, A. Juaristi and F. Potin, lawyers)

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