Action brought on 10 August 2010 - Viaguara v OHIM - Pfizer (VIAGUARA)

(Case T-332/10)

Language in which the application was lodged: Polish

Parties

Applicant: Viaguara S.A. (Warsaw, Poland) (represented by: R. Skubisz, legal adviser)

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

Other party to the proceedings before the Board of Appeal of OHIM: Pfizer Inc.

Form of order sought

annul in its entirety the decision of the First Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 20 May 2010 in Case R 964/2009-1;

order the defendant and Pfizer Inc. to pay the costs.

Pleas in law and main arguments

Applicant for a Community trade mark: Viaguara.

Community trade mark concerned: Word mark 'VIAGUARA' for goods in Classes 32 and 33 - application No 4630562.

Proprietor of the mark or sign cited in the opposition proceedings: Pfizer Inc.

Mark or sign cited in opposition: Community work mark 'VIAGRA' for goods in Class 5.

Decision of the Opposition Division: Opposition dismissed.

Decision of the Board of Appeal: Decision of the Opposition Division annulled and trade mark application rejected in its entirety.

Pleas in law: Infringement of Article 8(5) of Regulation No 207/2009 ¹ on account of an incorrect methodology for assessment of the connection between the marks and flawed findings in relation to the risk of exploitation of the repute and image of the trade mark cited in opposition.

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¹ - Council Regulation (EC) No 207/2009 of 26 February 2009 on the Community trade mark (codified version) (OJ 2009 L 78, p. 1).