Action brought on 26 January 2009 - Procaps v OHIM - Bioframa (PROCAPS)

(Case T -35/09)

Language in which the application was lodged: Spanish

Parties

Applicant: Procaps SA (Barranquilla, Colombia) (represented by: M. Vidal-Quadras Trias de Bes, 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: Biofarma SAS (Neuilly sur Seine, France)

Form of order sought

Annul the decision of the Fourth Board of Appeal of OHIM (Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 24 November 2008 in Case R 867/2007-4 which was notified to the parties on 25 November 2008.

Pleas in law and main arguments

Applicant for a Community trade mark: The applicant

Community trade mark concerned: Word mark 'PROCAPS' (Trade mark application No 3.519.394) for goods and services in Classes 5, 35, 39, 40, 44.

Proprietor of the mark or sign cited in the opposition proceedings: BIOFARMA, société par actions simplifiée.

Mark or sign cited in opposition: National and international word mark 'PROCAPTAN', for goods in Class 5.

Decision of the Opposition Division: Opposition: Opposition rejected.

Decision of the Board of Appeal: Appeal dismissed in part

Pleas in law: Incorrect application of Article 9(1)(b) of Regulation No 40/94 on the Community trade mark.

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