Action brought on 20 April 2009 - Winzer Pharma v OHIM

(Case T-160/09)

Language in which the application was lodged: German

Parties

Applicant: Dr. Winzer Pharma GmbH (Berlin, Germany) (represented by: S. Schneller, lawyer)

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

Other party/parties to the proceedings before the Board of Appeal of OHIM: Alcon Inc.

Forms of orders sought

Annul the decision of the First Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 4 February 2009 in case R 147/2007-1 and uphold the opposition No B 809899;

Grant an oral procedure;

Order OHIM or, in the alternative, the intervener, to bear all the costs of the proceedings; and

In the alternative, remit the case to OHIM.

Pleas in law and main arguments

Applicant for a Community trade mark: Alcon Cusì SA, who later transferred its rights to Alcon Inc.

Community trade mark concerned: Word mark 'OFTAL CUSI' of goods in class 5 (Registration No 3 679 181)

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

Mark or sign cited in opposition: Word mark 'Opthal' for goods in class 5 (Registration No 489 948)

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 Regulation (EC) No 40/94 (now Article 8(1)(b) of Regulation (EC) No 207/2009), as there is a likelihood of confusion or at least a likelihood of association between the marks at issue.

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