Judgment of the General Court (Fourth Chamber) of 16 September 2013 —
Oro Clean Chemie v OHIM — Merz Pharma (PROSEPT)
(Case T‑284/12)
Community trade mark — Opposition proceedings — Application for Community word mark PROSEPT — Earlier national word mark Pursept — Relative ground for refusal — Likelihood of confusion — Similarity of the signs — Article 8(1)(b) of Regulation (EC) No 207/2009 — Rights of defence — Article 75 of Regulation No 207/2009
1. Community trade mark — Procedural provisions — Examination of the facts of the Office’s own motion — Opposition proceedings — Examination restricted to the submissions of the parties — No obligation on OHIM to accept points put forward by a party which have not been challenged by the other party (Council Regulation No 207/2009, Art. 76(1)) (see para. 17)
2. Community trade mark — Procedural provisions — Decisions of the Office — Observance of the rights of the defence — Scope of the principle (Council Regulation No 207/2009, Art. 75, second sentence) (see para. 26)
3. 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 — Assessment of the likelihood of confusion — Criteria (Council Regulation No 207/2009, Art. 8(1)(b)) (see paras 35, 64)
4. 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 — Word marks PROSEPT and Pursept (Council Regulation No 207/2009, Art. 8(1)(b)) (see paras 46, 63, 65-67)
5. 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 — Weak distinctive character of the earlier mark — Relevance (Council Regulation No 207/2009, Art. 8(1)(b)) (see para. 69)
Re:
| ACTION brought against the decision of the First Board of Appeal of OHIM of 29 March 2012 (Case R 1053/2011‑1), relating to opposition proceedings between Merz Pharma GmbH & Co. KGaA and Oro Clean Chemie AG. |
Operative part
The Court:
2. | | Orders Oro Clean Chemie AG to pay the costs. |