Action brought on 13 October 2008 - Winzer Pharma v OHIM - Alcon (OFTAL CUSI)

(Case T-462/08)

Language in which the application was lodged: German

Parties

Applicant: Dr. Robert Winzer Pharma GmbH (Berlin, Germany) (represented by: S. Schneller, 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: Alcon, Inc. (Hünenberg, Switzerland)

Form of order sought

Annul the decision of the Board of Appeal of OHIM of 17 July 2008 (R 1471/2007-1) and the decision of the Opposition Division of OHIM of 16 July 2007 (B 809 899);

Reject the Community trade mark application No 003679181 'Oftal Cusi';

Order OHIM to pay all the costs of the proceedings.

Pleas in law and main arguments

Applicant for a Community trade mark: Alcon Cusì, S.A (subsequently, Alcon, Inc.)

Community trade mark applied for: the word mark 'OFTAL CUSI' for goods in Class 5.

Proprietor of the mark or sign cited in the opposition proceedings: Winzer Pharma

Mark or sign cited in opposition: 'Ophtal' (No 489 948) for goods in Class 5.

Decision of the Opposition Division: Rejection of the opposition.

Decision of the Board of Appeal: Dismissal of the appeal.

Pleas in law: Infringement of Article 8(1)(b) of Regulation (EC) No 40/1994¹ in that on account of their similarity there is a likelihood of confusion between the marks at issue.

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¹ - Council Regulation (EC) No 40/1994 of 20 December 1993 on the Community trade mark (OJ 1994 L 11, p. 1).