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Case C-481/08 P: Appeal brought on 10 November 2008 by Alcon Inc. against the judgment of the Court of First Instance (Fourth Chamber) delivered on 10 September 2008 in Case T-106/07 Alcon Inc. v Office for Harmonisation in the Internal Market (Trade Marks and Designs)
ECLI:EU:UNKNOWN:62008CN0481
62008CN0481
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24.1.2009
Official Journal of the European Union
C 19/15
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(Case C-481/08 P)
(2009/C 19/26)
Language of the case: English
Parties
Appellant: Alcon Inc. (represented by: M. Graf, Rechtsanwalt)
Other parties to the proceedings: Office for Harmonisation in the Internal Market (Trade Marks and Designs), *Acri.Tec AG Gesellschaft für ophthalmologische Produkte
Form of order sought
The appellant claims that the Court should:
—Annul the Judgment under appeal and annul the contested decision
—Order OHIM to bear the costs
Pleas in law and main arguments
The appellant contends that the contested judgment should be set aside on the following grounds:
—Distortion of facts and evidence since the relevant consumers are normal consumers. This is a question of law which must be decided by the Court even when the argument was first raised in the oral hearing, ‘da mihi facta, dabo tibi ius’.
—Error in application and interpretation of Article 8(1)(b) of Regulation No 40/94 (1) and distortion of facts and evidence since apparently only the pronunciation in the English language of the marks ‘BioVisc’ and ‘DUOVISC’ was taken into account, not the pronunciation in the French language.
* * *
Council Regulation (EC) No 40/94 of 20 December 1993 on the Community trade mark (OJ L 11, p. 1).
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