Action brought on 8 December 2006 - Rath v OHIM - Sanorell Pharma (Immunocell)
(Case T-368/06)
Language in which the application was lodged: German
Parties
Applicant: Matthias Rath (Cape Town, South Africa) (represented by: S. Ziegler, C. Kleiner and F. Dehn, lawyers)
Defendant: Office for Harmonisation in the Internal Market (Trade Marks and Designs)
Other party to the proceedings before the Board of Appeal of OHIM: Sanorell Pharma GmbH & Co.
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) (OHIM) of 3 October 2006;
Order OHIM to pay the costs of the proceedings.
Pleas in law and main arguments
Applicant for a Community trade mark: The applicant.
Community trade mark concerned: The word mark 'Immunocell' for goods and services in Classes 5, 16 and 41 (Registration No 1 065 903).
Proprietor of the mark or sign cited in the opposition proceedings: Sanorell Pharma GmbH & Co.
Mark or sign cited in opposition: The word mark 'IMMUNORELL' for goods in Class 5 (Community trade mark No 808 014), the opposition being brought only against the registration in Class 5.
Decision of the Opposition Division: Opposition granted, partial rejection of the application.
Decision of the Board of Appeal: Dismissal of the appeal.
Pleas in law: The contested decision infringes Article 8(1)(b) of Regulation (EC) No 40/94
1 since there is no likelihood of confusion between the opposing marks.
____________1 - Council Regulation (EC) No 40/94 of 20 December 1993 on the Community trade mark (OJ 1994 L 11, p. 1).