Appeal brought on 12 November2008 by Matthias Rath against the order of the Court of First Instance (Seventh Chamber) delivered on 8 September 2008 in Case T-373/06 Matthias Rath v Office for Harmonisation in the Internal Market

(Case C-488/08 P)

(2009/C 82/16)

Language of the case: German

Parties

Appellant: Matthias Rath (represented by: S. Ziegler, C. Kleiner and F. Dehn, Rechtsanwälte)

Other party to the proceedings: Office for Harmonisation in the Internal Market (Trade Marks and Designs)

Form of order sought

Pleas in law and main arguments

In its contested order, the Court of First Instance confirmed the decision of the First Board of Appeal, according to which, with regard to food supplements and dietetic substances for non-medical purposes, there is a likelihood of confusion between the word mark ‘EPICAN’ notified by the appellant and the earlier Community word mark ‘EPIGRAN’.

The appellant bases his appeal on an infringement of Article 8(1)(b) of Regulation No 40/94. The Court of First Instance, he claims, based its assessment of the similarity between the goods and signs on factual mistakes. If the Court of First Instance had correctly assessed the facts, it would necessarily have concluded that there was no likelihood of confusion between the opposing signs. This is so, in particular, because, as the Court of First Instance correctly held, consumers accord an increased level of attention to the goods which are the subject of the dispute.