Case C-461/09 P: Appeal brought on 23 November 2009 by The Wellcome Foundation Ltd against the judgment of the Court of First Instance (Seventh Chamber) delivered on 23 September 2009 in Case T-493/07: The Wellcome Foundation Ltd v Office for Harmonisation in the Internal Market (Trade Marks and Designs)
Date: 2009-11-23
Institutions: Court of Justice
Subjects: EU trade mark, European Union Intellectual Property Office, General Court (EU), action for annulment (EU), pharmaceutical product, trade-mark law








C_2010037EN.01000401.xml










13.2.2010   


EN


Official Journal of the European Union


C 37/4





Appeal brought on 23 November 2009 by The Wellcome Foundation Ltd against the judgment of the Court of First Instance (Seventh Chamber) delivered on 23 September 2009 in Case T-493/07: The Wellcome Foundation Ltd v Office for Harmonisation in the Internal Market (Trade Marks and Designs)
(Case C-461/09 P)
2010/C 37/06
Language of the case: English

Parties


Appellant: The Wellcome Foundation Ltd (represented by: R. Gilbey, avocat)

Other parties to the proceedings: Office for Harmonisation in the Internal Market (Trade Marks and Designs), Serono Genetics Institute S.A.

Form of order sought

The appellant claims that the Court should:






—


Find that, on confirming the contested decision of the Board of appeal, the Court of First Instance violated the legal requirements of Article 8-1-b CTMR (1) and 52-1-a CTMR










—


Annul the contested judgment confriming the Board of Appeal decision in that it rejected to annul all of OHIM's and the CFI's decisions on costs, and to order OHIM to pay costs.





Pleas in law and main arguments

The appellant submits that, based on the facts of the case as appear on the trade mark registers and as produced before OHIM, the CFI considered, without legal basis, the relevant public as having a high level of attentiveness.
The appellant submits that the CFI refused to take into account evidence produced by the appellant, which evidence, being mere amplification of arguments and evidence already produced before OHIM, should have been admissible.
The appellant submits that in describing the degree of similarity between the goods, the CFI used terminology that is vague and inconsistent, thus failing to provide precise, accurate and consistent reasons for the judgment n this issue.
The appellant submits that, on the basis of the facts before it, the CFI applied incorrect, incomplete and flawed legal tests to reach the conclusion that the Board of Appeal was correct in its finding that the level of similarity between the goods was low.
The appellant submits that the CFI, on the basis of the facts before it, failed to apply the correct test for global comparison of the signs, in reaching the conclusion that the level of similarity between the signs is low.
Finally the appellant submits that, having applied legally incorrect, incomplete or flawed tests for defining the relevant public, evaluating the degree of similarity of goods, and evaluating the degree of similarity between the signs, the CFI based its finding on likelihood of confusion, on incorrect, incomplete or flawed legal criteria.


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