Action brought on 15 July 2008 - Bayer Healthcare v OHIM - Laboratorios ERN (CITRACAL)

(Case T-277/08)

Language in which the application was lodged: English

Parties

Applicant: Bayer Healthcare LLC (Morristown, United States) (represented by: M. Edenborough, barrister)

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

Other party to the proceedings before the Board of Appeal: Laboratorios ERN, SA (Sant Just Desvern, Spain)

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 5 May 2008 in case R 459/2007-4; and

Order the defendant or alternatively the other party to the proceedings before the Board of Appeal to pay the costs. As a further alternative, to order the defendant and the other party to the proceedings before the Board of Appeal to be liable jointly and severally for the costs.

Pleas in law and main arguments

Applicant for the Community trade mark: The applicant (formerly Mission Pharmacal Company)

Community trade mark concerned: The word mark "CITRACAL" for goods in class 5, application No 1 757 855

Proprietor of the mark or sign cited in the opposition proceedings: The other party to the proceedings before the Board of Appeal (formerly Laboratorios Diviser-Aquilea, SL)

Mark or sign cited: Spanish trade mark registration No 223 532 of the mark "CICATRAL" for goods in classes 1 and 5

Decision of the Opposition Division: Uphold the opposition with respect to all the contested goods

Decision of the Board of Appeal: Dismissal of the appeal

Pleas in law: The Board of Appeal erred in its assessment of the evidence of proof-of-use, and in particular on the issue of the provision of a suitable translation of the goods in relation to which the mark cited in the opposition proceedings was used. Further, the Board of Appeal erred in its assessment of the existence of a likelihood of confusion between the conflicting trade marks.

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