Action brought on 24 November 2006 - Boston Scientific v OHIM - Terumo (CAPIO)

(Case T-325/06)

Language in which the application was lodged: English

Parties

Applicant: Boston Scientific Ltd (Christ Church, Barbados) (represented by: P. Rath and W. Festl-Wietek, lawyers)

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

Other party to the proceedings before the Board of Appeal: Terumo Kabushiki Kaisha (Tokyo, Japan)

Form of order sought

-    Annul the decision of the Second Board of Appeal of OHIM of 14 September 2006, served to the representatives of the plaintiff on 18 September 2006, in Case R 61/2006-2;

order OHIM to pay the costs of the proceedings before the Court and Board of Appeal.

Pleas in law and main arguments

Applicant for the Community trade mark: The applicant

Community trade mark concerned: The word mark 'CAPIO' for goods in class 10 - application No 2 554 434

Proprietor of the mark or sign cited in the opposition proceedings: Terumo Kabushiki Kaisha

Mark or sign cited: The national and Community word marks 'CAPIOX' and 'CAPIOX PULSE' for goods in class 10

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

Decision of the Board of Appeal: Annulment of the Opposition Division's decision

Pleas in law: Infringement of Article 43 of Council Regulation No 40/94 and Rule 22 of Commission Regulation No 2868/95 as Terumo failed to prove sufficient use of its trade mark, and of Article 8(1)(b) of the Council regulation as the conflicting trade marks are not likely to be confused.

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