Judgment of the General Court (Second Chamber) of 2 June 2010 – Procaps v OHIM – Biofarma (PROCAPS)

(Case T-35/09)

Community trade mark – Opposition procedure – Application for the Community word mark PROCAPS – Earlier national and international word marks PROCAPTAN – Relative ground for refusal – Likelihood of confusion – Similarity of the signs – Similarity of the goods and services – 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 32, 62, 66-67)

Re:

ACTION brought against the decision of the Fourth Board of Appeal of OHIM of 24 November 2008 (Case R 867/2007‑4) concerning opposition proceedings between Biofarma SAS and Procaps, SA.

Information relating to the case

Applicant for the Community trade mark:	Procaps, SA
Community trade mark sought:	Word mark PROCAPS for goods and services in Classes 5, 35, 39, 40, 44 – Application No 3519394
Proprietor of the mark or sign cited in the opposition proceedings:	Biofarma SAS
Mark or sign cited in opposition:	National and international word mark PROCAPTAN for goods in Class 5
Decision of the Opposition Division:	Opposition dismissed
Decision of the Board of Appeal:	Appeal dismissed in part

Operative part

The Court:

1.      Dismisses the action;

2.      Orders Procaps, SA to pay the costs.