29.3.2008

Official Journal of the European Union

C 79/31

(Case T-33/08)

(2008/C 79/60)

Language in which the application was lodged: Spanish

Parties

Applicant: Bastos Viegas, AS (Penafiel, Portugal) (represented by: G. Marín Raigal and P. López Ronda, lawyers)

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

Other party to the proceedings before the Board of Appeal of OHIM: Pierre Fabre Médicament, S.A.

Form of order sought

—Annul the Decision of the Fourth Board of Appeal of OHIM of 14 November 2007 (Case R 1238/2006-4) so as to dismiss the opposition lodged by Pierre Fabre and grant Community trade mark application No 2 429 249 ‘OPDREX’ (figurative) and order the opponent to pay the costs of both proceedings;

—Order the defendant to bear its own costs and to pay the costs of the applicant;

—Order the intervener to bear its own costs and to pay the costs of the applicant in these proceedings

Pleas in law and main arguments

Applicant for a Community trade mark: The applicant.

Community trade mark concerned: Figurative mark ‘OPDREX’ (application for registration No 2 429 249, for goods in Classes 5 and 10 and services in Class 35).

Proprietor of the mark or sign cited in the opposition proceedings: Pierre Fabre Médicament, S.A.

Mark or sign cited in opposition: National word mark ‘OPTREX’ for goods in Class 5 (pharmaceutical goods).

Decision of the Opposition Division: Upholding in part of the opposition, in respect of certain goods in Classes 5 and 10.

Decision of the Board of Appeal: Annulment of the contested decision, in so far as it rejects the Community trade mark application in respect of ‘surgical apparatus and instruments’ in Class 10.

Pleas in law: Incorrect application of Article 8(1)(b) of Regulation (EC) No 40/94 on the Community trade mark.