Judgment of the General Court (Fourth Chamber) of 9 October 2012 — Bial Portela v OHIM — Isdin (ZEBEXIR)

(Case T‑366/11)

Community trade mark — Opposition proceedings — Application for Community word mark ZEBEXIR — Earlier Community word mark ZEBINIX — Relative grounds for refusal — Article 8(1)(b) of Regulation (EC) No 207/2009

1.                     Community trade mark — Appeals procedure — Appeal before a Court of the European Union — Jurisdiction of the General Court — Direction issued to the Office — Not included (Council Regulation No 207/2009, Art. 65(6)) (see para. 14)

2.                     Community trade mark — Definition and acquisition of the Community trade mark — Relative grounds for refusal — Opposition by the proprietor of an earlier identical or similar mark registered for identical or similar goods or services — Likelihood of confusion with the earlier mark — Assessment of the likelihood of confusion — Criteria (Council Regulation No 207/2009, Art. 8(1)(b)) (see paras 17, 38)

3.                     Community trade mark — Definition and acquisition of the Community trade mark — Relative grounds for refusal — Opposition by the proprietor of an earlier identical or similar mark registered for identical or similar goods or services — Likelihood of confusion with the earlier mark — Word marks ZEBEXIR and ZEBINIX (Council Regulation No 207/2009, Art. 8(1)(b)) (see paras 18, 19, 37, 40)

Re:

ACTION brought against the decision of the First Board of Appeal of OHIM of 6 April 2011 (Case R 1212/2009 1), concerning opposition proceedings between Bial-Portela & Ca, SA and Isdin, SA.

Operative part

The Court:

1. Annuls the decision of the First Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) of 6 April 2011 (Case R 1212/2009-1);

2. Orders OHIM to bear its own costs and to pay those of Bial-Portela & Ca, SA;

3. Orders Isdin, SA to bear its own costs.