27.9.2008

EN

Official Journal of the European Union

C 247/17

(Case T-287/08)

(2008/C 247/34)

Language in which the application was lodged: English

Parties

Applicant: Cadila Healthcare Ltd (Ahmedabad, India) (represented by: S. Bailey, A. Juaristi and F. Potin, lawyers)

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

Other party to the proceedings before the Board of Appeal: Laboratorios Inibsa, SA (Llissa de Vall, Spain)

Form of order sought

—Annul the decision of the Second Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 5 May 2008 in case R 1322/2007-2; and

—Order the defendant to pay the costs, including those incurred in the proceedings before the Board of Appeal.

Pleas in law and main arguments

Applicant for the Community trade mark: The applicant

Community trade mark concerned: The word mark ‘ZYDUS’ for goods in classes 3, 5 and 10 — application No 3 277 662

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: Spanish trade mark registration No 2 360 938 of the mark ‘CIBUS’ for goods in class 5; Spanish trade mark registration No 2 360 939 of the mark ‘CIBUS’ for goods in class 3

Decision of the Opposition Division: Uphold the opposition with respect to all the contested goods

Decision of the Board of Appeal: Dismissal of the appeal

Pleas in law: The Board of Appeal erred in its decision that the Opposition Division stated the reasons for its decision and, thus, that Article 73 of Council Regulation 40/94 was not breached; the Board of Appeal erred in its decision that there was a likelihood of confusion between the earlier trade marks and the trade mark applied for, in breach of general principles of trade marks law and, in particular, Article 8(1)(b) of Council Regulation 40/94.