Judgment of the Court of First Instance (Eighth Chamber) of 11 June 2009 – Bastos Viegas v OHIM – Fabre Médicament (OPDREX)

(Case T-33/08)

Community trade mark – Opposition proceedings – Application for Community figurative mark OPDREX – Earlier national word mark OPTREX – Relative ground for refusal – Likelihood of confusion – Article 8(1)(b) of Regulation (EC) No 40/94 (now Article 8(1)(b) of Regulation (EC) No 207/2009)

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 (Council Regulation No 40/94, Art. 8(1)(b)) (see paras 19, 28, 35-37)

Re:

ACTION brought against the decision of the Fourth Board of Appeal of OHIM of 14 November 2007 (Case R 1238/2006-4), relating to opposition proceedings between Pierre Fabre Médicament SA and Bastos Viegas, SA.

Information relating to the case

Applicant for the Community trade mark:	Bastos Viegas, SA
Community trade mark sought:	Figurative mark OPDREX for goods in Classes 5 and 10 and services in Class 35 – Application No 2429249
Proprietor of the mark or sign cited in the opposition proceedings:	Pierre Fabre Médicament, SA
Mark or sign cited in opposition:	National word mark ‘OPTREX’ for goods in Class 5
Decision of the Opposition Division:	Opposition partially upheld, in respect of certain goods in Classes 5 and 10
Decision of the Board of Appeal:	Annulment of the contested decision, in so far as it rejects the Community trade mark application in respect of ‘surgical apparatus and instruments’ in Class 10

Operative part

The Court:

1.

Dismisses the action;

2.

Orders Bastos Viegas, SA to pay the costs.