Action brought on 17 June 2013 – Endoceutics/OHIM – Merck (FEMIVIA)

(Case T-324/13)

Language in which the application was lodged: English

Parties

Applicant: Endoceutics, Inc. (Quebec, Canada) (represented by: M. Wahlin, lawyer)

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

Other party to the proceedings before the Board of Appeal: Merck KGaA (Darmstadt, Germany)

Form of order sought

The applicant claims that the Court should:

Annul the decision of the Fourth Board of Appeal of the OHIM of 15 April 2013, in Case R 1021/2012-4;

Reject the opposition of the other party and allow registration of the Community trade mark applied for, namely the application for the mark FEMIVIA under application No. 9 386 343;

Order the other party to pay the applicant’s costs on the appeal and regarding the proceedings before the OHIM.

Pleas in law and main arguments

Applicant for a Community trade mark: The applicant

Community trade mark concerned: The word mark “FEMIVIA”, for goods in class 5 – Community trade mark application No 9 386 343

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 in opposition: Community trade mark of the word mark “FEMIBION”, for goods in class 5 and International registration with effect in the European Union for the figurative mark in black and white “femibion” for goods of classes 5 29 and 30

Decision of the Opposition Division: Rejected the opposition

Decision of the Board of Appeal: Annulled the contested decision and rejected the CTM application in its entirety

Pleas in law: Infringement of Article 8(1)(b) of Council Regulation No 207/2009.