CELEX: 62009TN0346
Language: en
Date: 2009-09-01 00:00:00
Title: Case T-346/09: Action brought on 1 September 2009 — Winzer Pharma v OHIM — Alcon (BAÑOFTAL)

24.10.2009   
            
            
               EN
            
            
               Official Journal of the European Union
            
            
               C 256/35
            
         Action brought on 1 September 2009 — Winzer Pharma v OHIM — Alcon (BAÑOFTAL)
   (Case T-346/09)
   2009/C 256/63
   Language in which the application was lodged: English
   
      Parties
   
   
      Applicants: Dr. Robert Winzer Pharma GmbH (Berlin, Germany) (represented by: S. Schneller, lawyer)
   
      Defendant: Office for Harmonisation in the Internal Market (Trade Marks and Designs)
   
      Other party to the proceedings before the Board of Appeal: Alcon, Inc. (Hünenberg, Switzerland)
   
      Form of order sought
   
   
               —
            
            
               Annul the decision of the First Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 28 May 2009 in case R 795/2008-1;
            
         
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               Order the defendant, in any event the other party to the proceedings before the Board of Appeal, to pay the costs; and
            
         
               —
            
            
               In the auxiliary, defer the matter to OHIM.
            
         
      Pleas in law and main arguments
   
   
      Applicant for the Community trade mark: The other party to the proceedings before the Board of Appeal
   
      Community trade mark concerned: The word mark “BAÑOFTAL”, for goods in class 5
   
      Proprietor of the mark or sign cited in the opposition proceedings: The applicant
   
      Mark or sign cited: German trade mark registration of the mark “PAN-OPHTAL” registered for goods in class 5; German trade mark registration of the mark “KAN-OPHTAL” registered for goods class 5
   
      Decision of the Opposition Division: Rejected the opposition
   
      Decision of the Board of Appeal: Dismissed the appeal
   
      Pleas in law: Infringement of Article 8(1)(b) of Council Regulation 207/2009 as the Board of Appeal wrongly assessed the visual, phonetic and conceptual similarities between the trade marks concerned, wrongly held that the Community trade mark concerned would not fall under the series of “Ophtal” trade marks of the other party to the proceedings before the Board of Appeal and wrongly denied an enhanced distinctiveness of the trade marks cited in the opposition proceedings based on use, thereby wrongly decided that there was no likelihood of confusion between the trade marks concerned; infringement of Article 8(5) of Council Regulation 207/2009 as the Board of Appeal omitted to make any statements on this ground of opposition; infringement of Articles 75 and 76(1) of Council Regulation 207/2009 as the Board of Appeal wrongly omitted to provide reasons, in any event comprehensive reasons, allowing an understanding of the decision.