13.2.2010

EN

Official Journal of the European Union

C 37/44

(Case T-492/09)

2010/C 37/63

Language in which the application was lodged: German

Parties

Applicant: MEDA Pharma GmbH & Co KG (Bad Homburg, Germany) (represented by: G. Würtenberger and R. Kunze, 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: Nycomed GmbH (Konstanz, Germany)

Form of order sought

—Annul the decision of the Fourth Board of Appeal of 29 September 2009 in appeal proceedings R 1386/2007-4 concerning the objection lodged on the basis of the German trade mark No 1 042 583‘ALLERGODIL’ against the European part of the international registration 845 934‘ALLERNIL’;

—Order the defendant to pay the costs of the proceedings.

Pleas in law and main arguments

Applicant for extension of protection: Nycomed GmbH

Trade mark for which an extension of protection is sought: the word mark ‘ALLERNIL’ for goods in Class 5 (international registration No 845 934, naming the European Community)

Proprietor of the mark cited in opposition proceedings: the applicant

Mark cited in opposition: the German word mark No 1 042 583‘ALLERGODIL’ for goods in Class 5

Decision of the Cancellation Division: Rejection of the opposition

Decision of the Board of Appeal: Dismissal of the appeal

Pleas in law:

—Infringement of Article 8(1)(b) of Regulation (EC) No 207/2009, since the principles of trade mark law relating to the likelihood of confusion were not correctly applied;

—Infringement of Article 75 of Regulation No 207/2009 owing to deficiencies in the reasoning of the contested decision.

Council Regulation (EC) No 207/2009 of 26 February 2009 on the Community trade mark (OJ 2009 L 78, p. 1)

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