Action brought on 2 April 2009 - Farmeco v OHIM - Allergan (BOTUMAX)

(Case T-131/09)

Language in which the application was lodged: English

Parties

Applicants: Farmeco SA Dermocosmetics, trading as "Farmeco SA" (Athens, Greece) (represented by: N. Lyberis, lawyer)

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

Other party to the proceedings before the Board of Appeal: Allergan, Inc. (Irvine, United States)

Form of order sought

Annul the decision of the Fourth Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 2 February 2009 in case R 60/2008-4, to the extent that the application for the Community trade mark concerned was rejected for all goods in classes 3 and 5 and certain goods in class 16;

Dismiss the appeal filed by the other party to the proceedings before the Board of Appeal against the decision of 26 October 2007 of the Opposition Division and allow the Community trade mark concerned to proceed to registration for all goods applied for; and

Order OHIM and the other party to the proceedings before the Board of Appeal to pay the costs, including those incurred in opposition and appeal proceedings.

Pleas in law and main arguments

Applicant for the Community trade mark: The applicant

Community trade mark concerned: The word mark "BOTUMAX", for goods in classes 3, 5 and 16 - application No 3 218 237

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: Various Community and national trade mark registrations of the word mark or the sign "BOTOX" for goods and services in classes 5, 16, and 42, respectively

Decision of the Opposition Division: Rejected the opposition

Decision of the Board of Appeal: Annulled the contested decision and rejected partially the application for the Community trade mark concerned

Pleas in law: Infringement of Article 8(1)(b) of Council Regulation 40/94 as the Board of Appeal erred in its finding that there is a likelihood of confusion between the trade marks concerned in respect of identical or highly similar goods, in spite of the existing differences between the visual and phonetic perception of the two signs; Infringement of Article 8(5) of Council Regulation 40/94 as the Board of Appeal wrongly considered that the conditions for the application of the said article were met.

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