do-me/EUR-LEX huggingface dataset:
Case T-222/09: Action brought on 1 June 2009 — INEOS Healthcare v OHIM — Teva Pharmaceutical Industries (ALPHAREN)
Date: 2009-06-01
Institutions: Court of First Instance
Subjects: EU trade mark, European Union Intellectual Property Office, action for annulment (EU), marketing, medicinal product, pharmaceutical industry, pharmaceutical product, trade-mark law








C_2009180EN.01006101.xml










1.8.2009   


EN


Official Journal of the European Union


C 180/61





Action brought on 1 June 2009 — INEOS Healthcare v OHIM — Teva Pharmaceutical Industries (ALPHAREN)
(Case T-222/09)
2009/C 180/112
Language in which the application was lodged: English

Parties


Applicants: INEOS Healthcare Ltd (Warrington, United Kingdom) (represented by: S. Malynicz, Barrister and A. Smith, Solicitor)

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

Other party to the proceedings before the Board of Appeal: Teva Pharmaceutical Industries Ltd (Jerusalem, Israel)

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 24 March 2009 in case R 1897/2007-2; and










—


Order the defendant and the other party to the proceedings before the Board of Appeal to pay their own costs, as well as those of the applicant.





Pleas in law and main arguments


Applicant for the Community trade mark: The applicant

Community trade mark concerned: The word mark “ALPHAREN”, for goods in class 5

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: Hungarian trade mark registration of the word mark “ALPHA D3” for goods in class 5; Lithuanian trade mark registration of the word mark “ALPHA D3” for goods in class 5; Latvian trade mark registration of the word mark “ALPHA D3” for goods in class 5

Decision of the Opposition Division: Upheld the opposition

Decision of the Board of Appeal: Dismissed the appeal

Pleas in law: The Board of Appeal failed to take account of the fact that the other party to the proceedings before it had failed to adduce evidence of similarity between the respective goods; Infringement of Article 75 of Council Regulation 207/2009 and the right to be heard as the Board of Appeal wrongly based material parts of its decision on evidence on which the applicant was not provided with an opportunity to present its comments; Infringement of Article 76 of Council Regulation 207/2009 as the Board of Appeal, in proceedings relating to relative grounds for refusal of registration, failed to restrict itself to an examination of the facts, evidence and arguments provided by the parties and the relief sought; Infringement of Article 8(1)(b) of Council Regulation 207/2009 as the Board of Appeal erred in relation to the identification of the relevant public and overall in its assessment of the likelihood of confusion.
Case C-193/09 P: Appeal brought on 1 June 2009 by Kaul GmbH against the judgment of the Court of First Instance (Fifth Chamber) delivered on 25 March 2009 in Case T-402/07: Kaul GmbH v Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) — Bayer AG
Date: 2009-06-01
Institutions: Court of Justice
Subjects: EU trade mark, European Union Intellectual Property Office, appeal, chemical product, trade-mark law








C_2009193EN.01000801.xml










15.8.2009   


EN


Official Journal of the European Union


C 193/8





Appeal brought on 1 June 2009 by Kaul GmbH against the judgment of the Court of First Instance (Fifth Chamber) delivered on 25 March 2009 in Case T-402/07: Kaul GmbH v Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) — Bayer AG
(Case C-193/09 P)
2009/C 193/08
Language of the case: English

Parties


Appellant: Kaul GmbH (represented by: R. Kunze, Rechtsanwalt and Solicitor, G. Würtenberger, Rechtsanwalt)

Other parties to the proceedings: Office for Harmonisation in the Internal Market (Trade Marks and Designs), Bayer AG

Form of order sought

The appellant requests that:






—


the judgment of the Court of First Instance of the European Communities of 25 March 2009 in Case T-402/07 Kaul GmbH v OHIM — Bayer (the judgment under appeal), by which that court dismissed the action brought against the decision of the Second Board of Appeal of the Office for Harmonisation in the Internal Market (Trademarks & Designs) (OHIM) of 1 August 2007 upholding the decision of the Opposition Division, by which the opposition directed against Community trademark application no. 000 195 370‘ACRCOL’ was rejected, be set aside;










—


following the conclusion of the written proceedings, an oral hearing before the Court of Justice be scheduled;










—


the Defendant pay the costs of the proceedings.





Pleas in law and main arguments

The appellant submits that the Court of First Instance's decision constitutes an infringement of the pertinent provisions of Regulation EC 40/94 (1) and, moreover, is in breach of fundamental procedural principles. Hence, the appeal directed against the decision issued by the Court of First Instance dated 25 March 2009 is well founded on the ground that






—


the Court of First Instance has incorrectly interpreted Article 74(2) Community Trademark Regulation 40/94/EC, and hence was in breach of said provision when issuing the judgment under appeal;










—


the Court of First Instance in the judgment under appeal, according to which an infringement of the right to be heard was immaterial for the outcome of the proceedings, is flawed and in breach of Article 61(2) and Article 73 of Community Trademark Regulation 40/94/EC, AND










—


the Court of Justice was incorrect in upholding the Board of Appeal's assessment pertaining to the criteria of likelihood of confusion pursuant to Article 8(1)(b) Community Trademark Regulation 40/94/EC.






(1)  Council Regulation (EC) No 40/94 of 20 December 1993 on the Community trade mark OJ L 11, p. 1