Source: EURLEX
Language: en
Format: md

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| 10.10.2009 | EN | Official Journal of the European Union | C 244/7 |

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Action brought on 24 July 2009 — Omnicare v OHIM — Astellas Pharma (formerly Yamanouchi Pharma) (OMNICARE)

(Case T-290/09)

2009/C 244/12

Language in which the application was lodged: English

Parties

Applicants: Omnicare, Inc. (Covington, United States) (represented by: M. Edenborough, Barrister)

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

Other party to the proceedings before the Board of Appeal: Astellas Pharma GmbH (formerly Yamanouchi Pharma GmbH) (Heidelberg, Germany)

Form of order sought

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| — | Annul the decision of the Fourth Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 14 May 2009 in case R 402/2008-4; and |

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| — | Award the applicant the costs incurred in connection with this appeal before the Court of First Instance. |

Pleas in law and main arguments

Applicant for the Community trade mark: The applicant

Community trade mark concerned: The word mark ‘OMNICARE’, for services in class 42

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 of the mark ‘OMNICARE’ for services in classes 35, 41 and 42

Decision of the Opposition Division: Rejected the opposition

Decision of the Board of Appeal: Annulled the contested decision and rejected the Community trade mark applied for

Pleas in law: Infringement of Article 8(1)(b) Council Regulation 207/2009 as the Board of Appeal wrongly held that: (a) the trade marks concerned were similar; (b) that there was genuine use of the trade mark cited in the opposition proceedings; (c) that the services for which genuine use had been shown were similar; and (d) that, as a consequence, there existed a likelihood of confusion between the trade marks concerned.

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