Action brought on 22 March 2007 - Scil Proteins v OHIM - Indena (affilene)

(Case T-87/07)

Language in which the application was lodged: English

Parties

Applicant: Scil Proteins GmbH (Halle, Germany) (represented by: V. Dalichau, lawyer)

Defendant: Office for Harmonisation in the Internal Market (Trade Marks and Designs)

Other party to the proceedings before the Board of Appeal: Indena SpA (Milan, Italy)

Form of order sought

The decision of the Second Board of Appeal of the defendant dated 23 January 2006, and the decision-corrigendum of the Second Board of Appeal of 31 January 2007, Case R 10/2006-2 be annulled as far as the opposition is dismissed with respect to the goods "extracts of medical plants for use in the ... cosmetic and food industries, not for diagnostic purposes";

the costs of the proceedings be borne by the defendant.

Pleas in law and main arguments

Applicant for the Community trade mark: Indena SpA

Community trade mark concerned: The figurative mark "affilene" for goods in class 1 - application No 2 751 931

Proprietor of the mark or sign cited in the opposition proceedings: The applicant

Mark or sign cited: The Community word mark "AFFILIN" for goods in classes 1 and 5

Decision of the Opposition Division: Opposition upheld in its entirety

Decision of the Board of Appeal: Opposition upheld partially

Pleas in law: Infringement of Article 8(1)(b) of Council Regulation No 40/94 since the trade marks in question are confusingly similar also with regard to the goods for which the registration was allowed to proceed by the Board of Appeal.

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