CELEX: 62009TN0290
Language: en
Date: 2009-07-24 00:00:00
Title: Case T-290/09: Action brought on 24 July 2009 — Omnicare v OHIM — Astellas Pharma (formerly Yamanouchi Pharma) (OMNICARE)

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