Action brought on 22 November 2006 - Altana Pharma v OHIM - Avensa (PNEUMO UPDATE)

(Case T -327/06)

Language in which the application was lodged: German

Parties

Applicant: Altana Pharma AG (Konstanz, Germany) (represented by: H. Becker, lawyer)

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

Other party to the proceedings before the Board of Appeal of OHIM: Avensa AG (Zug, Switzerland)

Form of order sought

The applicant claims that the Court should:

annul the decision of the First Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 11 September 2006 (Case R 668/2005-2);

order the Office for Harmonisation in the Internal Market (Trade Marks and Designs) to dismiss opposition No B 575 524 brought by the opponent;

in the alternative, order the Office for Harmonisation in the Internal Market (Trade Marks and Designs) to make a fresh decision on opposition No B 575 524 brought by the opponent in the light of the Court's opinion.

Pleas in law and main arguments

Applicant for a Community trade mark: The applicant.

Community trade mark concerned: The word mark 'PNEUMO UPDATE' for goods and services in Classes 5, 9, 16, 35, 38 and 41 (Application No 2 462 049).

Proprietor of the mark or sign cited in the opposition proceedings: Avensa AG.

Mark or sign cited in opposition: German word mark 'Pneumo' for goods in Class 5, the opposition being brought only against the registration in Class 5.

Decision of the Opposition Division: Opposition granted.

Decision of the Board of Appeal: Dismissal of the appeal.

Pleas in law: The contested decision is not reasoned in a comprehensible manner and it infringes Article 8(1)(b) of Regulation (EC) No 40/94, ¹ since there is no likelihood of confusion between the opposing marks. In addition, the applicant claims that the opposing mark is not in use.

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¹ - Council Regulation (EC) No 40/94 of 20 December 1993 on the Community trade mark (OJ 1994 L 11, p. 1).