Action brought on 6 July 2011 - Bial - Portela & Ca v OHIM - Isdin (ZEBEXIR)

(Case T-366/11)

Language in which the application was lodged: English

Parties

Applicant: Bial - Portela & Ca, SA (São Mamede do Coronado, Portugal) (represented by: B. Braga da Cruz and J. M. Pimenta, lawyers)

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

Other party to the proceedings before the Board of Appeal: Isdin, SA (Barcelona, Spain)

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 6 April 2011 in case R 1212/2009-1;

Order the defendant to refuse the grant of the registration of Community trade mark No 6809008 "ZEBEXIR"; and

Order the other party to the proceedings before the Board of Appeal to pay the costs of the proceedings.

Pleas in law and main arguments

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

Community trade mark concerned: The word mark "ZEBEXIR", for goods in classes 3 and 5 - Community trade mark application No 6809008

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

Mark or sign cited in opposition: Community trade mark registration No 3424223 of the word mark "ZEBINIX", for goods and services in classes 3, 5 and 42

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 assessed that the trademarks in question were not confusingly similar.

____________