Action brought on 4 November 2010 - Pharmazeutische Fabrik Evers v OHIM - Ozone Laboratories Pharma (HYPOCHOL)

(Case T-517/10)

Language in which the application was lodged: English

Parties

Applicant: Pharmazeutische Fabrik Evers GmbH & Co. KG (Pinneberg, Germany) (represented by: R. Kaase and R. Möller, lawyers)

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

Other party to the proceedings before the Board of Appeal: Ozone Laboratories Pharma SA (Bucureşti, Romania)

Form of order sought

Annul the decision of the Fourth Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 1st September 2010 in case R 1332/2009-4; and

Order the defendant to pay the costs of the proceedings.

Pleas in law and main arguments

Applicant for the Community trade mark: The other party to the proceedings before the Board of Appeal

Community trade mark concerned: The word mark "HYPOCHOL", for goods in class 5 - Community trade mark application No 5718069

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

Mark or sign cited: German trade mark registration No 1171145 of the figurative mark "HITRECHOL", for goods in class 5

Decision of the Opposition Division: Rejected the opposition

Decision of the Board of Appeal: Dismissed the appeal

Pleas in law: Infringement of Article 8(1)(b) of Council Regulation No 207/2009, as the Board of Appeal wrongly assumed that there was no likelihood of confusion between the trade marks due to a lacking similarity between the signs.

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