Action brought on 23 November 2010 - Kessel v OHIM - Janssen-Cilag (Premeno)

(Case T-536/10)

Language in which the application was lodged: German

Parties

Applicant: Kessel Marketing & Vertriebs GmbH (Mörfelden-Walldorf, Germany) (represented by: S. Bund, lawyer)

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

Other party to the proceedings before the Board of Appeal of OHIM: Janssen-Cilag GmbH (Neuss, Germany)

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 21 September 2010 in Case R 708/2010-4;

Order the defendant and the intervener, in accordance with Article 87(2) and (5) of the Rules of Procedure of the General Court, to pay the costs.

Pleas in law and main arguments

Applicant for a Community trade mark: the applicant

Community trade mark concerned: the word mark 'Premeno' for goods in Class 5

Proprietor of the mark or sign cited in the opposition proceedings: Janssen-Cilag GmbH

Mark or sign cited in opposition: the German word mark 'Pramino' for goods in Class 5

Decision of the Opposition Division: opposition upheld

Decision of the Board of Appeal: appeal dismissed

Pleas in law: Infringement of Article 42(2) and (3) of Regulation (EC) No 207/2009¹, as there is insufficient proof of use of the opposing trade mark and infringement of Article 8(1)(b) of Regulation (EC) No 207/2009 as there is no likelihood of confusion of the marks at issue.

The applicant also submits that the restriction of the list of goods and services is admissible.

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