Action brought on 29 July 2011 - Biotronik SE v OHIM - Cardios Sistemas (CARDIO MANAGER)

(Case T-416/11)

Language in which the application was lodged: German

Parties

Applicant: Biotronik SE & Co. KG (Berlin, Germany) (represented by: A. Reich and S. Pietzcker, lawyers)

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

Other party to the proceedings before the Board of Appeal: Cardios Sistemas Comercial e Industrial Ltdª (Sao Paulo, Brazil)

Form of order sought

The applicant claims that the General Court should:

annul the decision of the Second Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 27.05.2011 in Case R 1156/2010-2;

allow the opposition to the Community trade mark application No 5378071 in respect of all goods in Class 9 and in Class 10;

alternatively, refer the opposition back to the Office for Harmonisation in the Internal Market for further consideration in accordance with the judgment of the General Court;

order the Office for Harmonisation in the Internal Market to pay the costs.

Pleas in law and main arguments

Applicant for a Community trade mark: Cardios Sistemas Comercial e Industrial Ltdª.

Community trade mark concerned: Word mark 'CARDIO MANAGER' for goods in Classes 9 and 10 - Registration No 5 378 071.

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

Mark or sign cited in opposition: Word mark 'Cardiomessenger' for goods in Classes 9 and 10.

Decision of the Opposition Division: Rejection of the opposition.

Decision of the Board of Appeal: Dismissal of the appeal.

Pleas in law: First, infringement of Article 42(2) and (3) of Regulation No 207/2009 in conjunction with Rule 22(3) and (4) of Regulation No 2868/95, because proof of the place, time and also the extent and nature of the use of the mark 'Cardiomessenger' was provided and, secondly, infringement of Article 8(1)(b) and Article 41 of Regulation No 207/2009, because there is no likelihood of confusion between the marks at issue.

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