Judgment of the General Court (Sixth Chamber) of 12 July 2012— Winzer Pharma v OHIM— Alcon (BAÑOFTAL)
(Case T-346/09)
Community trade mark— Opposition proceedings— Application for Community word mark BAÑOFTAL— Earlier national word marks KAN-OPHTAL and PAN-OPHTAL— Relative ground for refusal— Likelihood of confusion— Article 8(1)(b) of Regulation (EC) No 207/2009
1.Community trade mark— Appeals procedure— Action before the EU judicature— Rules on languages (Rules of Procedure of the General Court, Arts 130(1), and 131) (see paras 30, 32)
2.Procedure— Application initiating proceedings— Formal requirements— Brief summary of the pleas in law on which the application is based— Pleas in law not set out in the application— General reference to other documents— Inadmissibility (Statute of the Court of Justice, Art. 21; Rules of Procedure of the General Court, Art. 44(1)(c)) (see para. 43)
3.Community trade mark— Definition and acquisition of the Community trade mark— Relative grounds for refusal— Opposition by the proprietor of an earlier identical or similar mark registered for identical or similar goods or services— Likelihood of confusion with the earlier mark— Assessment of the likelihood of confusion (Council Regulation No 40/94, Art.8(1)(b)) (see paras 49, 105)
4.Community trade mark— Definition and acquisition of the Community trade mark— Relative grounds for refusal— Opposition by the proprietor of an earlier identical or similar mark registered for identical or similar goods or services— Likelihood of confusion with the earlier mark— Word mark BAÑOFTAL— Word marks KAN-OPHTAL and PAN-OPHTAL (Council Regulation No 40/94, Art. 8(1)(b)) (see paras 51, 64, 71, 103, 106)
5.Community trade mark— Decisions of the Office— Principle of equal treatment— Principle of sound administration— OHIM’s previous decision-making practice (see para. 85)
6.Community trade mark— Definition and acquisition of the Community trade mark— Prior registration of the trade mark in certain Member States— Effect (see para. 92)
Re:
| ACTION brought against the decision of the First Board of Appeal of OHIM of 28 May 2009 (Case R 795/2008-1) relating to opposition proceedings between DrRobert Winzer Pharma GmbH and Alcon Inc. |
Operative part
The Court:
1. |
| Annuls the decision of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) of 28 May 2009 (Case R795/2008‑1); |
2. |
| Orders OHIM to bear its own costs and to pay those incurred by Dr Robert Winzer Pharma GmbH; |
3. |
| Orders Alcon Inc. to bear its own costs. |