Action brought on 21 October 2008 - Lancôme v OHIM - Focus Magazin Verlag (ACNO FOCUS)

(Case T-466/08)

Language in which the application was lodged: English

Parties

Applicant: Lancôme parfums et beauté & Cie SNC (Paris, France) (represented by: A. von Mühlendahl and J. Pagenberg, lawyers)

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

Other party to the proceedings before the Board of Appeal: Focus Magazin Verlag GmbH (München, Germany)

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 29 July 2008 in case R 1796/2007-1;

Dismiss the opposition filed by the other party to the proceedings before the Board of Appeal against the registration of the community trade mark concerned to the extent the opposition is based on the trade mark cited in the opposition proceedings and, further, is based on a likelihood of confusion within the meaning of Article 8(1)(b) of Council Regulation 40/94;

Order OHIM to pay the costs of the proceedings, including those incurred by the applicant before the Board of Appeal; and

Order the other party to the proceedings before the Board of Appeal to pay the costs of the proceedings, including those incurred by the applicant before the Board of Appeal, should the other party to the proceedings before the Board of Appeal become an intervener in the present case.

Pleas in law and main arguments

Applicant for the Community trade mark: The applicant

Community trade mark concerned: The word mark "ACNO FOCUS" for goods in class 3 - application No 3 272 705

Proprietor of the mark or sign cited in the opposition proceedings: The other party to the proceedings before the Board of Appeal

Mark or sign cited: German trade mark registration No 394 07 564 of the word mark "FOCUS" for goods and services in classes 3, 5, 6, 7, 8, 9, 14, 15, 16, 18, 20, 21, 24, 25, 26, 28, 29, 30, 33, 34, 36, 38, 39, 41 and 42; Community trade mark application No 453 720 for, among others, goods in class 3

Decision of the Opposition Division: Upheld the opposition in its entirety

Decision of the Board of Appeal: Dismissal of the appeal

Pleas in law: Infringement of Article 42(3) in conjunction with Article 43(2) of Council Regulation No 40/94 as the Board of Appeal erred in its approach that the other party to the proceedings before the Board of Appeal can rely on goods in class 3 to oppose the registration of the Community trade mark concerned; Infringement of Article 8(1)(b) of Council Regulation No 40/94 as the Board of Appeal erred in its finding that there exists a likelihood of confusion between the trade marks concerned.

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