Action brought on 25 July 2008 - Cadila Healthcare v OHIM - Novartis (ZYDUS)

(Case T-288/08)

Language in which the application was lodged: English

Parties

Applicant: Cadila Healthcare Ltd (Ahmedabad, India) (represented by: S. Bailey, A. Juaristi and F. Potin, lawyers)

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

Other party to the proceedings before the Board of Appeal: Novartis AG (Basel, Switzerland)

Form of order sought

Annul the decision of the Second Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 7 May 2008 in case R 1092/2007-2; and

Order the defendant to pay the costs, including those incurred in the proceedings before the Board of Appeal.

Pleas in law and main arguments

Applicant for the Community trade mark: The applicant

Community trade mark concerned: The word mark "ZYDUS" for goods in classes 3, 5 and 10 - application No 3 277 662

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: Community trade mark registration No 2 356 964 of the mark "ZIMBUS" for goods in class 5

Decision of the Opposition Division: Uphold the opposition with respect to part of the contested goods

Decision of the Board of Appeal: Partial dismissal of the appeal

Pleas in law: The Board of Appeal erred in its decision that there was a likelihood of confusion between the earlier trade mark and the trade mark applied for, in breach of general principles of trade mark law and, in particular, Article 8(1)(b) of Council Regulation 40/94.

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