Case T-466/08: Action brought on 21 October 2008 — Lancôme v OHIM — Focus Magazin Verlag (ACNO FOCUS)
Date: 2008-10-21
Institutions: Court of First Instance
Subjects: EU trade mark, European Union Intellectual Property Office, action for annulment (EU), cosmetic product, trade-mark law

C 6/36

EN

Official Journal of the European Union

10.1.2009

Pleas in law:

— infringement
No 40/94 (1);

of Article 7(1)(b)

of Regulation

(EC)

— infringement of the principle of examination of the facts by
the Office of its own motion,
including disregard for the
rules concerning the burden of proof under Article 74(1) of
Regulation No 40/94;

— infringement of the requirement to state reasons for the
purposes of the first sentence of Article 73 of Regulation
No 40/94;

— infringement of the principle of equal treatment.

(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 21 October 2008 — Lancôme v OHIM
— Focus Magazin Verlag (ACNO FOCUS)

(Case T-466/08)

(2009/C 6/72)

Language in which the application was lodged: English

Parties

Applicant: Lancôme parfums et beauté & Cie SNC (Paris, France)
(represented by: A. von Mühlendahl and J. Pagenberg, lawyers)

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

Other party to the proceedings before the Board of Appeal: Focus
Magazin Verlag GmbH (München, Germany)

Form of order sought

— Annul the decision of the First Board of Appeal of the
(Trade
Office for Harmonisation in the Internal Market
Marks and Designs) of 29 July 2008 in case R 1796/2007-1;

— Dismiss the opposition filed by the other party to the
proceedings before the Board of Appeal against the registra-
tion of the community trade mark concerned to the extent
the opposition is based on the trade mark cited in the oppo-
sition proceedings and, further, is based on a likelihood of
confusion within the meaning of Article 8(1)(b) of Council
Regulation 40/94;

— Order OHIM to pay the costs of the proceedings, including
those incurred by the applicant before the Board of Appeal;
and

— Order the other party to the proceedings before the Board
of Appeal to pay the costs of the proceedings,
including
those incurred by the applicant before the Board of Appeal,
should the other party to the proceedings before the Board
of Appeal become an intervener in the present case.

Pleas in law and main arguments

Applicant for the Community trade mark: The applicant

Community trade mark concerned: The word mark ‘ACNO FOCUS’
for goods in class 3 — application No 3 272 705

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 394 07 564
of the word mark ‘FOCUS’ for goods and services in classes 3,
5, 6, 7, 8, 9, 14, 15, 16, 18, 20, 21, 24, 25, 26, 28, 29, 30, 33,
34, 36, 38, 39, 41 and 42; Community trade mark application
No 453 720 for, among others, goods in class 3

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

Decision of the Board of Appeal: Dismissal of the appeal

Pleas in law: Infringement of Article 42(3) in conjunction with
Article 43(2) of Council Regulation No 40/94 as the Board of
the other party to the
Appeal erred in its approach that
proceedings before the Board of Appeal can rely on goods in
class 3 to oppose the registration of the Community trade mark
concerned; Infringement of Article 8(1)(b) of Council Regulation
No 40/94 as the Board of Appeal erred in its finding that there
exists a likelihood of confusion between the trade marks
concerned.

Action brought on 17 October 2008 — ISDIN v OHIM —
Pfizer (ISDIN)

(Case T-467/08)

(2009/C 6/73)

Language in which the application was lodged: English

Parties

Applicant: Isdin, SA (Barcelona, Spain) (represented by: M. Esteve
Sanz, lawyer)

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

Other party to the proceedings before the Board of Appeal: Pfizer Ltd
(Sandwich, United Kingdom)