12.4.2008

Official Journal of the European Union

C 92/30

(Case T-26/08)

(2008/C 92/62)

Language in which the application was lodged: English

Parties

Applicant: Laboratórios Wellcome de Portugal Lda (Algés, Portugal) (represented by: R. Gilbey, lawyer)

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

Other party to the proceedings before the Board of Appeal: Serono Genetics Institute SA (Evry, France)

Form of order sought

—Annul the decision of the First Board of Appeal OHIM dated 20 November 2007 (Case R 10/2007-1) and declare the request for invalidation brought by the appellant well founded;

—annul all cost orders made against the appellant by the Office for Harmonisation in the Internal Market and order the latter to bear the costs of the appellant.

Pleas in law and main arguments

Registered Community trade mark subject of the application for a declaration of invalidity: The word mark ‘FAMOXIN’ for goods and services in class 5 — Community trade mark No 2 491 298

Proprietor of the Community trade mark: Serono Genetics Institute SA

Party requesting the declaration of invalidity of the Community trade mark: The applicant

Trade mark right of the party requesting the declaration of invalidity: The national word mark ‘LANOXIN’ for goods in class 5

Decision of the Cancellation Division: Rejection of the request for a declaration of invalidity

Decision of the Board of Appeal: Dismissal of the appeal

Pleas in law: Infringement of Articles 8(1)(b), 52 and 56(2) and (3) of Council Regulation No 40/94, as the Board of Appeal found the earlier trade mark to be used for ‘pharmaceutical preparations with digoxin for cardiovascular illnesses’ and not ‘pharmaceutical preparations with digoxin’ and as it assessed the relevant public, the level of attentiveness of the different parts of the relevant public and the similarity of the conflicting trade marks and goods incorrectly.