Action brought on 18 July 2007 — Sepracor v OHIM — Laboratorios Ern (LEVENIA)

(Case T-280/07)

(2007/C 235/26)

Language in which the application was lodged: English

Parties

Applicant: Sepracor, Inc. (Malborough, United States) (represented by: E. De Gryse, E. Cornu, D. Moreau, lawyers)

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

Other party to the proceedings before the Board of Appeal: Laboratorios Ern, SA (Barcelona, Spain)

Form of order sought

Pleas in law and main arguments

Applicant for the Community trade mark: Sepracor, Inc.

Community trade mark concerned: The Community word mark ‘LEVENIA’ for goods in class 5 — application No 2 563 799

Proprietor of the mark or sign cited in the opposition proceedings: Laboratorios Ern, SA

Mark or sign cited: The national word mark ‘LEVELINA’ for goods in classes 1 and 5

Decision of the Opposition Division: Rejected the opposition in its entirety

Decision of the Board of Appeal: Upheld the appeal

Pleas in law: The applicant claims that the contested decision infringes Article 43 CTMR and Rule 22 CTMIR since the justification of the First Board of Appeal, which held that the non-use of the national trademark ‘LEVELINA’ was justified for a certain type of pharmaceutical products and preparations, cannot constitute a ‘proper reason’ for non-use in the sense of Article 43(2) CTMR. Moreover, the applicant contends that even if the Court were to consider that the finding of the Board was correct and that non-use was sufficiently justified, the contested decision allegedly infringes Article 8(1)(b) CTMR.