Judgment of the General Court (Fourth Chamber) of 8 September 2010 – 4care v OHIM – Laboratorios Diafarm (Acumed)

(Case T-575/08)

Community trade mark – Opposition proceedings – Application for Community figurative mark Acumed – Earlier national word mark AQUAMED ACTIVE – Relative ground for refusal – Likelihood of confusion – Similarity of the signs – Similarity of the goods – Article 8(1)(b) of Regulation (EC) No 40/94 (now Article 8(1)(b) of Regulation (EC) No 207/2009)

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 23, 55)

Re:

ACTION brought against the decision of the Second Board of Appeal of OHIM of 7 October 2008 (Case R 1636/2007-2), concerning opposition proceedings between Laboratorios Diafarm, SA and 4care AG.

Information relating to the case

Applicant for the Community trade mark:	4care AG
Community trade mark sought:	Figurative mark Acumed for goods in Classes 3, 5 and 9 – Application No 4493136
Proprietor of the mark or sign cited in the opposition proceedings:	Laboratorios Diafarm, SA
Mark or sign cited in opposition:	Spanish word mark AQUAMED ACTIVE (trade mark No 2506452) for goods in Class 5 and Community word mark AQUAMED ACTIVE (No 2882272) for goods in Class 5
Decision of the Opposition Division:	Opposition upheld
Decision of the Board of Appeal:	Appeal dismissed

Operative part

The Court:

1. Dismisses the action;

2. Orders 4care AG to pay the costs.