Action brought on 31 October 2011 - Nycomed v OHIM - Bayer Consumer Care (ALEVIAN DUO)

(Case T-561/11)

Language in which the application was lodged: English

Parties

Applicant: Nycomed GmbH (Konstanz, Germany) (represented by: A. Ferchland, lawyer)

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

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

Form of order sought

Annul the decision of the First Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 21 July 2011 in case R 1953/2010-1, and dismiss the opposition; and

Order the opponent to bear the costs and fees of both the proceedings before the Opposition Division and the appeal proceedings.

Pleas in law and main arguments

Applicant for a Community trade mark: The applicant

Community trade mark concerned: The word mark "ALEVIAN DUO", for goods in class 5 - Community trade mark application No 6303201

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 in opposition: Community trade mark registration No 786863 of the word mark "ALEVE", for goods in class 5

Decision of the Opposition Division: Rejected the opposition

Decision of the Board of Appeal: Annulled the decision of the Opposition Division

Pleas in law: Infringement of Article 8(1)(b) of Council Regulation No 207/2009, as the Board of Appeal wrongly assessed the existence of likelihood of confusion between the opposing marks.

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