Case C-488/08 P: Appeal brought on 12 November2008 by Matthias Rath against the order of the Court of First Instance (Seventh Chamber) delivered on 8 September 2008 in Case T-373/06 Matthias Rath v Office for Harmonisation in the Internal Market
Date: 2008-11-12
Institutions: Court of Justice
Subjects: EU trade mark, European Union Intellectual Property Office, appeal, dietary product, food supplement, pharmaceutical product, trade-mark law

4.4.2009

EN

Official Journal of the European Union

C 82/9

Appeal brought on 12 November2008 by Matthias Rath
against the order of the Court of First Instance (Seventh
Chamber) delivered on 8 September 2008 in Case T-373/06
Matthias Rath v Office for Harmonisation in the Internal
Market

Appeal brought on 12 November 2008 by Mr Matthias
Rath against the order of
the Court of First Instance
(Seventh Chamber) made on 8 September 2008 in Case
T-374/06 Matthias Rath v Office for Harmonisation in the
Internal Market

(Case C-488/08 P)

(2009/C 82/16)

(Case C-489/08 P)

(2009/C 82/17)

Language of the case: German

Language of the case: German

Parties

Parties

Appellant: Matthias Rath (represented by: S. Ziegler, C. Kleiner
and F. Dehn, Rechtsanwälte)

Appellant: Matthias Rath (represented by: S. Ziegler, C. Kleiner
and F. Dehn, Rechtsanwälte)

Other party to the proceedings: Office for Harmonisation in the
Internal Market (Trade Marks and Designs)

Other party to the proceedings: Office for Harmonisation in the
Internal Market (Trade Marks and Designs)

Form of order sought

Form of order sought

— set aside the order of the Seventh Chamber of the Court of

First Instance of 8 September 2008 in Case T-373/06;

— grant the form of order sought at first instance;

— order OHIM and the intervener to pay the costs of the

proceedings.

Pleas in law and main arguments

In its contested order, the Court of First Instance confirmed the
decision of the First Board of Appeal, according to which, with
regard to food supplements and dietetic substances for non-
medical purposes, there is a likelihood of confusion between the
word mark ‘EPICAN’ notified by the appellant and the earlier
Community word mark ‘EPIGRAN’.

appellant bases his

appeal on an infringement of
The
Article 8(1)(b) of Regulation No 40/94. The Court of First
Instance, he claims, based its assessment of
the similarity
between the goods and signs on factual mistakes. If the Court of
First Instance had correctly assessed the facts, it would necessa-
rily have concluded that there was no likelihood of confusion
between the opposing signs. This is so, in particular, because, as
the Court of First Instance correctly held, consumers accord an
increased level of attention to the goods which are the subject
of the dispute.

— Set aside the order of the Seventh Chamber of the Court of

First Instance of 8 September 2008 in Case T-374/06;

— grant the forms of order sought at first instance;

— order the Office for Harmonisation in the Internal Market
and the intervener to pay the costs of the proceedings.

Pleas in law and main arguments

By its order under appeal, the Court of First Instance confirmed
the decision of the First Board of Appeal that there is a likeli-
hood of confusion as regards food supplements not for medical
purposes and dietetic substances not adapted for medical use
between the word sign ‘EPICAN’ applied for by the appellant
and the earlier Community word mark ‘EPIGRAN FORTE’.

The appellant's appeal is based on an infringement of Article 8
(1)(b) of Regulation No 40/94. The Court of First Instance relied
on erroneous facts in its assessment of the similarity of products
and signs. If the Court had assessed the facts correctly, it would
have had to conclude that there is no likelihood of confusion
between the signs at issue. This is particularly the case since, as
the Court correctly found, consumers pay a high level of atten-
tion to the goods at issue in the proceedings.