Action brought on 5 March 2012 — Bial — Portela v OHIM — Probiotical (PROBIAL)

(Case T-113/12)

2012/C 165/35

Language in which the application was lodged: English

Parties

Applicant: Bial — Portela & Ca, SA (São Mamede do Coronado, Portugal) (represented by: B. Braga da Cruz and J. Pimenta, lawyers)

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

Other party to the proceedings before the Board of Appeal: Probiotical SpA (Novara, Italy)

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 figurative mark in dark blue and light blue ‘PROBIAL’, for goods in classes 1, 5 and 31 — Community trade mark application No 2408128

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

Mark or sign cited in opposition: Portuguese trade mark registration No 155284 of the word mark ‘Bial’, for goods in class 5; the trade mark ‘Bial’ being well known in Portugal; Community trade mark registration No 1400183 of the figurative mark in black and white ‘Bial’, for goods and services in classes 3, 5 and 42; Spanish trade mark registration No 2026481 of the figurative mark in black and white ‘Bial’, for services in class 35; international registration No 490635 for the mark in standard characters ‘Bial’, for goods in class 5; emblem of establishment No 868 of the figurative sign ‘Bial’; Name of establishment No 35157 for the word ‘Bial’; logotype No 951 of the figurative sign ‘Bial’

Decision of the Opposition Division: Rejected the opposition

Decision of the Board of Appeal: Dismissed the appeal

Pleas in law: Infringement of Article 8(1)(b) of Council Regulation No 207/2009, as the Board of Appeal wrongly assessed that the trademarks in question were not confusingly similar.