Case T-462/08: Action brought on 13 October 2008 — Winzer Pharma v OHIM — Alcon (OFTAL CUSI)
Date: 2008-10-13
Institutions: Court of First Instance
Subjects: EU trade mark, European Union Intellectual Property Office, Germany, action for annulment (EU), pharmaceutical industry, trade-mark law

C 327/38

EN

Official Journal of the European Union

20.12.2008

Pleas in law and main arguments

Action brought on 13 October 2008 — Winzer Pharma v
OHIM — Alcon (OFTAL CUSI)

In support of their application the applicants put forward two
grounds for annulment. The second ground is divided into three
pleas.

(Case T-462/08)

(2008/C 327/67)

First, the applicants submit that the Council and the Commis-
sion breached Article 11(3) of the basic regulation (2) and/or
requirement by
made a breach of an essential procedural
refusing to initiate upon their own initiative an interim review
of injury and the injury margin findings in parallel with the
expiry review, and consequently made a manifest error of assess-
ment in the finding of a likelihood of recurrence of injury in the
context of the expiry review.

interim review,

the applicants claim that

Secondly,
the Council and the
Commission wrongly established the normal value for the appli-
cants in the partial
leading to its artificial
increase, and made a wrong comparison with export price, and
hence made
thereby
breaching Articles 1 and 2 of the basic regulation, committing
series of manifest errors of assessment and violating funda-
mental principles of Community law.

finding of dumping,

an erroneous

More particularly, the applicants argue that the Council and the
Commission erred in law and violated Article 2(3) and (5) of
the basic regulation as well as their legal context provided by
Articles 1 ad 2 of the basic regulation, by disregarding a major
part of the applicants' costs of production as being unreliable
and/or de facto applying a non-market economy methodology
for establishing the major part of the applicants' normal value.

Once having decided to proceed with the gas adjustment, the
Commission violated Article 2(5), second sentence, and/or made
a manifest error of appreciation and showed a lack of reasoning
by implementing the gas adjustment on the basis of the intra-
Community price of gas at Waidhaus, Germany and failing to
make further deductions.

Finally, the applicants submit that the Council and the Commis-
sion violated Article 2(10) of the basic regulation and made a
manifest error of assessment of the facts by deducting from the
applicants' export price the first independent customer selling,
general and administrative expenses and commissions in respect
of related companies, which are integral parts of the applicants'
single economic entity and integrated sales department.

(1) OJ L 185, p. 1.
(2) Council Regulation (EC) No 384/96 of 22 December 1995 on
protection against dumped imports from countries not members of
the European Community (OJ 1996 L 56, p. 1).

Language in which the application was lodged: German

Parties

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

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

Other party to the proceedings before the Board of Appeal of OHIM:
Alcon, Inc. (Hünenberg, Switzerland)

Form of order sought

— Annul the decision of the Board of Appeal of OHIM of
17 July 2008 (R 1471/2007-1) and the decision of the
Opposition Division of OHIM of 16 July 2007 (B 809 899);

— Reject

Community
No 003679181 ‘Oftal Cusi’;

the

trade mark

application

— Order OHIM to pay all the costs of the proceedings.

Pleas in law and main arguments

Applicant for a Community trade mark: Alcon Cusì, S.A (subse-
quently, Alcon, Inc.)

Community trade mark applied for: the word mark ‘OFTAL CUSI’
for goods in Class 5.

Proprietor of the mark or sign cited in the opposition proceedings:
Winzer Pharma

Mark or sign cited in opposition: ‘Ophtal’ (No 489 948) for goods
in Class 5.

Decision of the Opposition Division: Rejection of the opposition.

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

Pleas in law: Infringement of Article 8(1)(b) of Regulation (EC)
No 40/1994 (1) in that on account of their similarity there is a
likelihood of confusion between the marks at issue.

(1) Council Regulation (EC) No 40/1994 of 20 December 1993 on the

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