Action brought on 22 December 2008 - 4care v OHIM - Laboratorios Diafarm (Acumed)

(Case T-575/08)

Language in which the application was lodged: German

Parties

Applicant: 4care AG (Kiel, Germany) (represented by: S. Redeker, 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: Laboratorios Diafarm, SA (Barbera del Valles, Spain)

Form of order sought

Annul the decision of the Second Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 7 October 2008 in Case R 16636/2007-2 and reject the opposition entered by Laboratorios Diafarm, SA;

order the defendant and Laboratorios Diafarm, SA to pay the costs.

Pleas in law and main arguments

Applicant for a Community trade mark: The applicant.

Community trade mark concerned: Figurative mark 'Acumed' for goods in Classes 3, 5 and 9 (application for registration 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 allowed.

Decision of the Board of Appeal: Appeal dismissed.

Pleas in law: Infringement of Article 8(1)(b) of Regulation (EC) No 40/94, ¹ since there is no likelihood of confusion between the marks at issue.

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¹ - Council Regulation (EC) No 40/94 of 20 December 1993 on the Community trade mark (OJ 1994 L 11, p. 1).