Action brought on 31 October 2011 - Nycomed v OHIM - Bayer Consumer Care (ALEVIAN DUO)
(Case T-561/11)
Language in which the application was lodged: English
Parties
Applicant: Nycomed GmbH (Konstanz, Germany) (represented by: A. Ferchland, lawyer)
Defendant: Office for Harmonisation in the Internal Market (Trade Marks and Designs)
Other party to the proceedings before the Board of Appeal: Bayer Consumer Care AG (Basel, Switzerland)
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 21 July 2011 in case R 1953/2010-1, and dismiss the opposition; and
Order the opponent to bear the costs and fees of both the proceedings before the Opposition Division and the appeal proceedings.
Pleas in law and main arguments
Applicant for a Community trade mark: The applicant
Community trade mark concerned: The word mark "ALEVIAN DUO", for goods in class 5 - Community trade mark application No 6303201
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 in opposition: Community trade mark registration No 786863 of the word mark "ALEVE", for goods in class 5
Decision of the Opposition Division: Rejected the opposition
Decision of the Board of Appeal: Annulled the decision of the Opposition Division
Pleas in law: Infringement of Article 8(1)(b) of Council Regulation No 207/2009, as the Board of Appeal wrongly assessed the existence of likelihood of confusion between the opposing marks.
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