Case T-289/08: Action brought on 29 July 2008 — Deutsche BKK v OHIM
Date: 2008-07-29
Institutions: Court of First Instance
Subjects: EU trade mark, European Union Intellectual Property Office, action for annulment (EU), health insurance, insurance company, trade-mark law

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)

27.9.2008

EN

Official Journal of the European Union

C 247/19

Form of order sought

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 29 May 2008 in Case R 318/2008-4, noti-
fied on 2 June 2008;

— Order the defendant to pay the costs.

— Annul the decision of the First Board of Appeal of the
Office for Harmonisation in the Internal Market (Trade Marks
and Designs) of 7 May 2008 in case R 808/2007-1; and

— Order the defendant and the other party to the proceedings

before the Board of Appeal to pay the costs.

Pleas in law and main arguments

Community trade mark concerned: The word mark ‘Deutsche BKK’
for services in Classes 36, 41 and 44 (application No 4 724 894).

Decision of the Examiner: Refusal of the application.

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

Pleas in law:

— Infringement of Article 73 of Regulation (EC) No 40/94 (1)
due to the rejection of documents without the possibility for
prior comments;

— Infringement of the first sentence of Article 4(1) of Regu-
lation No 40/94 due to the Office's improper investigation
of the facts;

— Infringement of Article 7(1)(b) and (c) of Regulation
No 40/94 due to denial of protection for the mark ‘Deutsche
BKK’ because of absolute grounds for refusal of protection
for the mark;

— Infringement of Article 7(3) of Regulation No 40/94 due to
refusal to recognise distinctive character in consequence of
use.

(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 2008 — CPS Color Group v
OHIM — Fema Farben und Putze (TEMACOLOR)

(Case T-295/08)

(2008/C 247/37)

Language in which the application was lodged: English

Pleas in law and main arguments

Applicant for the Community trade mark: The applicant

Community trade mark concerned: The word mark ‘TEMACOLOR’
for goods in class 2

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: German trade mark registration No 2 104 061
of the word mark ‘FEMA-Color’ for goods in class 2; interna-
tional trade mark registration No 691 406 of the word mark
‘FEMA-Color’ for goods in class 2

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

Decision of the Board of Appeal: Dismissal of the appeal

Pleas in law: The Board of Appeal erred in law in determining
that
in
the conflicting trade marks are confusingly similar,
breach of Article 8(1)(b) of Council Regulation 40/94.

Action brought on 28 July 2008 — Berliner Institut für
the
Vergleichende Sozialforschung v Commission of

European Communities

(Case T-296/08)

(2008/C 247/38)

Language of the case: German

Parties

Applicant: Berliner Institut für Vergleichende Sozialforschung eV
(Berlin, Germany) (represented by: U. Claus,
lawyer, acting as
Agent)

Defendant: Commission of the European Communities

Parties

Form of order sought

Applicant: CPS Color Group Oy (Vantaa, Finland) (represented
by: P. Hagman, lawyer)

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

Other party to the proceedings before the Board of Appeal: Fema
Farben und Putze GmbH (Ettlingen, Germany)

— Annul the Commission Decision of 23 May 2008 defini-
tively granting a payment under the ‘Integration indicators
and generation change’ programme on the basis of
the
financing arrangement JLS/2004/INTI/077, insofar as appli-
cant's application for a final payment of EUR 59 592,77,
exceeding the authorised amount, was rejected;

— order the Commission to pay the costs.