CELEX: C2006/294/120
Language: en
Date: 2006-12-02 00:00:00
Title: Case T-277/06: Action brought on 9 October 2006 — Omnicare v OHIM — Yamanouchi Pharma (OMNICARE)

2.12.2006   
            
            
               EN
            
            
               Official Journal of the European Union
            
            
               C 294/60
            
         Action brought on 9 October 2006 — Omnicare v OHIM — Yamanouchi Pharma (OMNICARE)
   (Case T-277/06)
   (2006/C 294/120)
   Language in which the application was lodged: English
   Parties
   
      Applicant: Omnicare Inc. (Covington, USA) (represented by: M. Edenborough, Barrister)
   
      Defendant: Office for Harmonisation in the Internal Market (Trade Marks and Designs)
   
      Other party before the Board of Appeal: Yamanouchi Pharma GmbH (Heidelberg, Germany)
   Form of order sought
   
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               The appeal by the appellant to the Court of First Instance be allowed;
            
         
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               the decision of the Second Board of Appeal case No R0446/2006-2 be annulled in its entirety;
            
         
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               the application for restitutio in integrum be remitted to the Board of Appeal for reconsideration; and
            
         
               —
            
            
               the Office pays to the appellant the costs incurred by it 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: Word mark ‘OMNICARE’ for goods and services in classes 16 and 42 — application No 284 067
   
      Proprietor of the mark or sign cited in the opposition proceedings: Yamanouchi Pharma GmbH
   
      Mark or sign cited: National figurative mark ‘OMNICARE’ for services in classes 35, 41 and 42
   
      Decision of the Opposition Division: Opposition upheld in its entirety
   
      Decision of the Board of Appeal: Refusal of the application for restitutio in integrum and declaration that the appeal was deemed not to have been filed
   
      Pleas in law: Misinterpretation of Article 78(5) of Council Regulation No 40/94 in finding that an application for restitutio in integrum cannot be made if the subject matter of the said application concerns the failure to comply with the time limit set out in Article 59 of the regulation.