Judgment of the General Court (Seventh Chamber) of 14 July 2011 – Winzer Pharma v OHIM – Alcon (OFTAL CUSI)

(Case T-160/09)

Community trade mark – Opposition proceedings – Application for Community word mark OFTAL CUSI – Earlier Community word mark Ophtal – Relative ground for refusal – No likelihood of confusion – Article 8(1)(b) of Regulation (EC) No 40/94 (now Article 8(1)(b) of Regulation (EC) No 207/2009)

1.                     Community trade mark – Procedural provisions – Statement of reasons for decisions – Article 73, first sentence, of Regulation No 40/94 – Scope identical to that of Article 253 EC (Art. 253 EC; Council Regulation No 40/94, Art. 73, first sentence) (see para. 34)

2.                     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 96, 98)

Re:

ACTION brought against the decision of the First Board of Appeal of OHIM of 4 February 2009 (Case R 1471/2007-1) concerning opposition proceedings between Dr Robert Winzer Pharma GmbH and Alcon Inc.

Operative part

The Court:

1. Dimisses the action;

2. Orders Dr Robert Winzer Pharma GmbH to bear its own costs and those of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) and of Alcon Inc.