CELEX: 62009TN0131
Language: en
Date: 2009-04-02 00:00:00
Title: Case T-131/09: Action brought on 2 April 2009 — Farmeco v OHIM — Allergan (BOTUMAX)

6.6.2009   
            
            
               EN
            
            
               Official Journal of the European Union
            
            
               C 129/18
            
         Action brought on 2 April 2009 — Farmeco v OHIM — Allergan (BOTUMAX)
   (Case T-131/09)
   2009/C 129/32
   Language in which the application was lodged: English
   
      Parties
   
   
      Applicants: Farmeco SA Dermocosmetics, trading as “Farmeco SA” (Athens, Greece) (represented by: N. Lyberis, lawyer)
   
      Defendant: Office for Harmonisation in the Internal Market (Trade Marks and Designs)
   
      Other party to the proceedings before the Board of Appeal: Allergan, Inc. (Irvine, United States)
   
      Form of order sought
   
   
               —
            
            
               Annul the decision of the Fourth Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 2 February 2009 in case R 60/2008-4, to the extent that the application for the Community trade mark concerned was rejected for all goods in classes 3 and 5 and certain goods in class 16;
            
         
               —
            
            
               Dismiss the appeal filed by the other party to the proceedings before the Board of Appeal against the decision of 26 October 2007 of the Opposition Division and allow the Community trade mark concerned to proceed to registration for all goods applied for; and
            
         
               —
            
            
               Order OHIM and the other party to the proceedings before the Board of Appeal to pay the costs, including those incurred in opposition and appeal proceedings.
            
         
      Pleas in law and main arguments
   
   
      Applicant for the Community trade mark: The applicant
   
      Community trade mark concerned: The word mark “BOTUMAX”, for goods in classes 3, 5 and 16 — application No 3 218 237
   
      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: Various Community and national trade mark registrations of the word mark or the sign “BOTOX” for goods and services in classes 5, 16, and 42, respectively
   
      Decision of the Opposition Division: Rejected the opposition
   
      Decision of the Board of Appeal: Annulled the contested decision and rejected partially the application for the Community trade mark concerned
   
      Pleas in law: Infringement of Article 8(1)(b) of Council Regulation 40/94 as the Board of Appeal erred in its finding that there is a likelihood of confusion between the trade marks concerned in respect of identical or highly similar goods, in spite of the existing differences between the visual and phonetic perception of the two signs; Infringement of Article 8(5) of Council Regulation 40/94 as the Board of Appeal wrongly considered that the conditions for the application of the said article were met.