Action brought on 8 November 2011 — McNeil v OHIM — Alkalon (NICORONO)

(Case T-580/11)

(2012/C 25/111)

Language in which the application was lodged: English

Parties

Applicant: McNeil AB (Helsingborg, Sweden) (represented by: I. Starr, Solicitor)

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

Other party to the proceedings before the Board of Appeal: Alkalon ApS (Copenhagen V, Denmark)

Form of order sought

Pleas in law and main arguments

Applicant for a Community trade mark: The other party to the proceedings before the Board of Appeal

Community trade mark concerned: The word mark ‘NICORONO’, for goods in classes 5, 10 and 30 — Community trade mark application No 6654529

Proprietor of the mark or sign cited in the opposition proceedings: The applicant

Mark or sign cited in opposition: Community trade mark registration No 2190239 of the word mark ‘NICORETTE’, for goods in classes 5, 10 and 30

Decision of the Opposition Division: Upheld the opposition

Decision of the Board of Appeal: Annulled the contested decision

Pleas in law: Infringement of Articles 75, 8(1)(b) and 8(5) of Council Regulation No 207/2009, as the Board of Appeal has failed to give sufficient weight in the overall assessment to: (i) the identity of the goods concerned and the fact that this offsets a lesser degree of similarity between the marks to be compared; (ii) the fact that consumers normally perceive word marks as a whole and pay particular attention to the beginning of a mark; and (iii) the fact that the applicant’s mark ‘NICORETTE’ has enhanced distinctiveness and an extensive reputation through significant use.