Action brought on 8 December 2006 — Rath v OHIM — Sanorell Pharma (Immunocell)

(Case T-368/06)

(2007/C 56/58)

Language in which the application was lodged: German

Parties

Applicant: Matthias Rath (Cape Town, South Africa) (represented by: S. Ziegler, C. Kleiner and F. Dehn, lawyers)

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

Other party to the proceedings before the Board of Appeal of OHIM: Sanorell Pharma GmbH & Co.

Form of order sought

Pleas in law and main arguments

Applicant for a Community trade mark: The applicant.

Community trade mark concerned: The word mark ‘Immunocell’ for goods and services in Classes 5, 16 and 41 (Registration No 1 065 903).

Proprietor of the mark or sign cited in the opposition proceedings: Sanorell Pharma GmbH & Co.

Mark or sign cited in opposition: The word mark ‘IMMUNORELL’ for goods in Class 5 (Community trade mark No 808 014), the opposition being brought only against the registration in Class 5.

Decision of the Opposition Division: Opposition granted, partial rejection of the application.

Decision of the Board of Appeal: Dismissal of the appeal.

Pleas in law: The contested decision infringes Article 8(1)(b) of Regulation (EC) No 40/94 (1) since there is no likelihood of confusion between the opposing marks.

(1)  Council Regulation (EC) No 40/94 of 20 December 1993 on the Community trade mark (OJ L 11, 1994, p. 1).