Action brought on 7 December 2009 - MEDA Pharma v OHIM - Nycomed (ALLERNIL)
(Case T-492/09)
Language in which the application was lodged: German
Parties
Applicant: MEDA Pharma GmbH & Co KG (Bad Homburg, Germany) (represented by: G. Würtenberger and R. Kunze, lawyers)
Defendant: Office for Harmonisation in the Internal Market (Trade Marks and Designs)
Other party to the proceedings before the Board of Appeal of OHIM: Nycomed GmbH (Konstanz, Germany)
Form of order sought
Annul the decision of the Fourth Board of Appeal of 29 September 2009 in appeal proceedings R 1386/2007-4 concerning the objection lodged on the basis of the German trade mark No 1 042 583 'ALLERGODIL' against the European part of the international registration 845 934 'ALLERNIL';
Order the defendant to pay the costs of the proceedings.
Pleas in law and main arguments
Applicant for extension of protection: Nycomed GmbH
Trade mark for which an extension of protection is sought: the word mark 'ALLERNIL' for goods in Class 5 (international registration No 845 934, naming the European Community)
Proprietor of the mark cited in opposition proceedings: the applicant
Mark cited in opposition: the German word mark No 1 042 583 'ALLERGODIL' for goods in Class 5
Decision of the Cancellation Division: Rejection of the opposition
Decision of the Board of Appeal: Dismissal of the appeal
Pleas in law:
Infringement of Article 8(1)(b) of Regulation (EC) No 207/2009,
1 since the principles of trade mark law relating to the likelihood of confusion were not correctly applied;
Infringement of Article 75 of Regulation No 207/2009 owing to deficiencies in the reasoning of the contested decision.
____________1 - Council Regulation (EC) No 207/2009 of 26 February 2009 on the Community trade mark (OJ 2009 L 78, p. 1)