Case T-575/08: Action brought on 22 December 2008 — 4care v OHIM — Laboratorios Diafarm (Acumed)
Date: 2008-12-22
Institutions: Court of First Instance
Subjects: EU trade mark, European Union Intellectual Property Office, action for annulment (EU), trade-mark law

7.3.2009

EN

Official Journal of the European Union

C 55/43

Action brought on 22 December 2008 — 4care v OHIM —
Laboratorios Diafarm (Acumed)

Action brought on 23 December 2008 — Germany v
Commission

(Case T-575/08)

(2009/C 55/76)

Language in which the application was lodged: German

(Case T-576/08)

(2009/C 55/77)

Language of the case: German

Parties

Applicant: 4care AG (Kiel, Germany) (represented by: S. Redeker,
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:
Laboratorios Diafarm, SA (Barbera del Valles, Spain)

Parties

Applicant: Federal Republic of Germany (represented by: M.
Lumma and B. Klein)

Defendant: Commission of the European Communities

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 7 October 2008 in Case R 16636/2007-2
and reject the opposition entered by Laboratorios Diafarm,
SA;

— annul Commission Regulation (EC) No 983/2008 of
3 October 2008 adopting the plan allocating to the Member
States resources to be charged to the 2009 budget year for
the supply of food from intervention stocks for the benefit
of the most deprived persons in the Community;

— maintain the effects of the annulled regulation;

— order the defendant and Laboratorios Diafarm, SA to pay

the costs.

— order the defendant to pay the costs.

Pleas in law and main arguments

Pleas in law and main arguments

Applicant for a Community trade mark: The applicant.

Community trade mark concerned: Figurative mark ‘Acumed’ for
goods in Classes 3, 5 and 9 (application for
registration
No 4493136).

Proprietor of the mark or sign cited in the opposition proceedings:
Laboratorios Diafarm, SA.

Mark or sign cited in opposition: Spanish word mark ‘AQUAMED
ACTIVE’ (trade mark No 2506452) for goods in Class 5 and
Community word mark ‘AQUAMED ACTIVE’ (No 2882272) for
goods in Class 5.

Decision of the Opposition Division: Opposition allowed.

Decision of the Board of Appeal: Appeal dismissed.

Pleas in law: Infringement of Article 8(1)(b) of Regulation (EC)
No 40/94 (1), since there is no likelihood of confusion between
the marks at issue.

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

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

The applicant seeks the annulment of Commission Regulation
(EC) No 983/2008 of 3 October 2008 (1), which contains the
annual plan for 2009 in respect of the distribution of food to
the most deprived persons in the Community.

In the applicant's submission, the regulation has no legal basis
in Community law. While it was adopted on the basis of Regu-
lation (EC) No 1234/2007 (2), which in turn has the common
agricultural policy of the Community (Articles 36 and 37 EC, in
conjunction with Article 33 EC) as legal basis,
it does not,
however, meet the requirements laid down therein.

The plan was originally devised by way of a competence ancil-
lary to the common agricultural policy as essentially available
intervention stocks were used for a social purpose. For several
years, on the other hand, the plan has been operating exclusively
through the purchase of food on the market since, because of
common foreign policy reforms,
intervention stocks hardly
remain. The applicant regards the plan today as a purely social-
policy instrument of the Community for which there is no legal
basis (principle of conferred powers).

The contested regulation is thus not compatible with the
requirements in Article 27(2) of Regulation No 1234/2007
which allows the purchase of food for the plan only if interven-
tion stocks have temporarily reached their capacity. In the mean-
time it has, however, become a permanent state of affairs that
the purchase of food largely predominates.