Action brought on 24 July 2009 - Omnicare v OHIM - Astellas Pharma (formerly Yamanouchi Pharma) (OMNICARE)

(Case T-290/09)

Language in which the application was lodged: English

Parties

Applicants: Omnicare, Inc. (Covington, United States) (represented by: M. Edenborough, Barrister)

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

Other party to the proceedings before the Board of Appeal: Astellas Pharma GmbH (formerly Yamanouchi Pharma GmbH) (Heidelberg, Germany)

Form of order sought

Annul the decision of the Fourth Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 14 May 2009 in case R 402/2008-4; and

Award the applicant the costs incurred in connection with this appeal before the Court of First Instance.

Pleas in law and main arguments

Applicant for the Community trade mark: The applicant

Community trade mark concerned: The word mark "OMNICARE", for services in class 42

Proprietor of the mark or sign cited in the opposition proceedings: The other party to the proceedings before the Board of Appeal

Mark or sign cited: German trade mark registration of the mark "OMNICARE" for services in classes 35, 41 and 42

Decision of the Opposition Division: Rejected the opposition

Decision of the Board of Appeal: Annulled the contested decision and rejected the Community trade mark applied for

Pleas in law: Infringement of Article 8(1)(b) Council Regulation 207/2009 as the Board of Appeal wrongly held that: (a) the trade marks concerned were similar; (b) that there was genuine use of the trade mark cited in the opposition proceedings; (c) that the services for which genuine use had been shown were similar; and (d) that, as a consequence, there existed a likelihood of confusion between the trade marks concerned.

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