Official Journal of the European Union

C 82/9

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(Case C-489/08 P)

(2009/C 82/17)

Language of the case: German

Parties

Applicant: Matthias Rath (represented by: S. Ziegler, C. Kleiner and F. Dehn, Rechtsanwälte)

Other party to the proceedings: Office for Harmonisation in the Internal Market (Trade Marks and Designs)

Form of order sought

—Set aside the order of the Seventh Chamber of the Court of First Instance of 8 September 2008 in Case T-374/06;

—grant the forms of order sought at first instance;

—order the Office for Harmonisation in the Internal Market and the intervener to pay the costs of the proceedings.

Pleas in law and main arguments

By its order under appeal, the Court of First Instance confirmed the decision of the First Board of Appeal that there is a likelihood of confusion as regards food supplements not for medical purposes and dietetic substances not adapted for medical use between the word sign ‘EPICAN’ applied for by the appellant and the earlier Community word mark ‘EPIGRAN FORTE’.

The appellant's appeal is based on an infringement of Article 8(1)(b) of Regulation No 40/94. The Court of First Instance relied on erroneous facts in its assessment of the similarity of products and signs. If the Court had assessed the facts correctly, it would have had to conclude that there is no likelihood of confusion between the signs at issue. This is particularly the case since, as the Court correctly found, consumers pay a high level of attention to the goods at issue in the proceedings.

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