Action brought on 29 November 2011 - Novartis v OHIM - Organic (BIOCERT)

(Case T-605/11)

Language in which the application was lodged: English

Parties

Applicant: Novartis AG (Basel, Switzerland) (represented by: M. Douglas, lawyer)

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

Other party to the proceedings before the Board of Appeal: Dr. Organic Ltd (Swansea, United Kingdom)

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 28 September 2011 in case R 1030/2010-4; and

Order the defendant to bear the costs of the proceedings.

Pleas in law and main arguments

Applicant for a Community trade mark: The other party to the proceedings before the Board of Appeal

Community trade mark concerned: The word mark "BIOCERT", for goods and services in classes 3, 4, 5, 29, 30, 31, 32, 35 and 44 - Community trade mark application No 7134984

Proprietor of the mark or sign cited in the opposition proceedings: The applicant

Mark or sign cited in opposition: Austrian trade mark registration No 136273 of the word mark "BIOCEF", for goods in class 5

Decision of the Opposition Division: Rejected the opposition in its entirety

Decision of the Board of Appeal: Dismissed the appeal

Pleas in law: Infringement of Articles 8(1)(b) and 76(1) of Council Regulation No 207/2009, as the Board of Appeal: (i) misinterpreted general principles laid down by the European courts and wrongly concluded that there is no likelihood of confusion between "BIOCEF" and "BIOCERT"; and (ii) wrongly based its decision on facts which have not been forwarded by the parties of the proceedings.

____________