Action brought on 18 February 2010 - Certmedica International GmbH v OHIM - Lehning Enterprise (L112)

(Case T-77/10)

Language in which the application was lodged: German

Parties

Applicant: Certmedica International GmbH (Aschaffenburg, Germany) (represented by: P. Pfortner, lawyer)

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

Other party to the proceedings before the Board of Appeal of OHIM: Lehning Enterprise SARL (Sainte Barbe, France)

Form of order sought

Annul the decision of the Second Board of Appeal of OHIM of 9 December 2009 (Case R 934/2009-2), notified on 21 December 2009, inasmuch as it declares invalid the Community trade mark "L112" (EU 002349728) in relation to the goods "Pharmaceutical and veterinary preparations; medicinal products for internal use; food supplements for medical purposes" in Class 5;

in the alternative, annul the decision of the Second Board of Appeal of OHIM of 9 December 2009 (Case R 934/2009-2), notified on 21 December 2009, inasmuch as it declares invalid the Community trade mark "L112" (EU 002349728) in relation to the goods "Medicinal products for internal use; food supplements for medical purposes" in Class 5;

in the further alternative, annul the decision of the Second Board of Appeal of OHIM of 9 December 2009 (Case R 934/2009-2), notified on 21 December 2009, inasmuch as it declares invalid the Community trade mark "L112" (EU 002349728) in relation to the goods "Medicinal products for internal use" in Class 5;

reject in full the application, based on the French trade mark "L.114" (F 1 312 700), for a declaration of invalidity of Community trade mark "L112" (EU 002349728) and permit registration of Community trade mark "L112" for the following goods:

"Class 5: Pharmaceutical, veterinary and sanitary preparations; medicinal products for internal use; food supplements for medical purposes; dietetic foodstuffs concentrates with a shellfish base (including chitosan)

Class 29: Foodstuff concentrates with a shellfish base (including chitosan)";

in the alternative reject the application, based on the French trade mark "L.114" (F 1 312 700), for a declaration of invalidity of Community trade mark "L112" (EU 002349728) inasmuch as it seeks a declaration of invalidity of the trade mark "L112" in Class 5 for the goods "Medicinal products for internal use; food supplements for medical purposes" and permit registration of Community trade mark "L112" for the following goods:

"Class 5: Sanitary preparations; medicinal products for internal use; food supplements for medical purposes; dietetic foodstuffs concentrates with a shellfish base (including chitosan)

Class 29: Foodstuff concentrates with a shellfish base (including chitosan)";

in the further alternative, reject the application, based on the French trade mark "L.114" (F 1 312 700), for a declaration of invalidity of Community trade mark "L112" (EU 002349728) inasmuch as it seeks a declaration of invalidity of the trade mark "L112" in Class 5 for the goods "Medicinal products for internal use" and permit registration of Community trade mark "L112" for the following goods:

"Class 5: Sanitary preparations; medicinal products for internal use; dietetic foodstuffs concentrates with a shellfish base (including chitosan)

Class 29: Foodstuff concentrates with a shellfish base (including chitosan)";

Order Lehning Enterprise SARL to pay all costs arising for the applicant out of the invalidity proceedings and the proceedings before the Board of Appeal;

in the alternative, order the applicant to pay the costs of the invalidity proceedings only to the extent that that the trade mark "L112" (EU 002349728) was declared invalid for the goods "Pharmaceutical preparations" (20%);

in the further alternative, order the applicant to pay the costs of the invalidity proceedings only to the extent that that the trade mark "L112" (EU 002349728) was declared invalid for the goods "Pharmaceutical preparations; food supplements for medicinal purposes" (30%);

Pleas in law and main arguments

Registered Community trade mark in respect of which a declaration of invalidity has been sought: the Community word mark No 2 349 728 for goods in Classes 5 and 29

Proprietor of the Community trade mark: the applicant

Applicant for the declaration of invalidity: Lehning Enterprise SARL

Trade mark right of applicant for the declaration: the French word mark "L.114" (trade mark No 1 312 700), although the application concerned only certain goods in Class 5

Decision of the Cancellation Division: application for a declaration of invalidity upheld and the Community trade mark concerned declared partially invalid

Decision of the Board of Appeal: applicant's appeal partially upheld

Pleas in law:

No proof of use of the French trade mark "L.114" by the applicant for a declaration of invalidity;

No similarity of goods in Class 5;

Error of law by the Board of Appeal in assessing the similarity of the signs

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