Judgment of the General Court (Eighth Chamber) of 28 October 2010 – Farmeco v OHIM – Allergan (BOTUMAX)
(Case T-131/09)
Community trade mark – Opposition proceedings – Application for the Community word mark BOTUMAX – Earlier Community word and figurative marks BOTOX – Relative grounds for refusal – Likelihood of confusion – Damage to reputation – Article 8(1)(b) and (5) of Regulation (EC) No 40/94 (now Article 8(1)(b) and (5) of Regulation (EC) No 207/2009)
1. 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 (Council Regulation No 40/94, Art. 8(1)(b)) (see paras 46, 65-67)
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 enjoying a reputation – Protection of well-known earlier mark extended to dissimilar goods or services (Council Regulation No 40/94, Art. 8(5)) (see paras 82-86, 92-101)
Re:
| ACTION brought against the decision of the Fourth Board of Appeal of OHIM of 2 February 2009 (Case R 60/2008-4), relating to opposition proceedings between Allergan Inc. and Farmeco AE Dermokallyntika. |
Information relating to the case
Applicant for the Community trade mark: | Farmeco AE Dermokallyntika |
Community trade mark sought: | Word mark BOTUMAX for goods in Classes 3, 5 and 16 – Application No 3218237 |
Proprietor of the mark or sign cited in the opposition proceedings: | Allergan Inc. |
Mark or sign cited in opposition: | Various Community and national trade mark registrations of the word mark or the sign BOTOX for goods and services in Classes 5, 16, and 42, respectively |
Decision of the Opposition Division: | Opposition dismissed |
Decision of the Board of Appeal: | Contested decision annulled; application for Community trade mark sought dismissed in part |
Operative part
The Court:
2. | | Orders Farmeco AE Dermokallyntika to pay the costs. |