JUDGMENT OF THE GENERAL COURT (Third Chamber)

3 July 2013 (*)

(Community trade mark – Opposition proceedings – Application for the Community word mark ALPHAREN – Earlier national word marks ALPHA D3 – Relative ground for refusal – Compliance by OHIM with a judgment annulling a decision of its Boards of Appeal – Article 65(6) of Regulation (EC) No 207/2009 – Composition of the Boards of Appeal – Article 1(d) of Regulation (EC) No 216/96)

In Case T‑106/12,

Cytochroma Development, Inc., established in Saint Michael (Barbados), represented by S. Malynicz, Barrister, and A. Smith, Solicitor,

applicant,

v

Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM), represented by A. Folliard-Monguiral, acting as Agent,

defendant,

the other party to the proceedings before the Board of Appeal of OHIM being

Teva Pharmaceutical Industries Ltd, established in Jerusalem (Israel),

ACTION brought against the decision of the First Board of Appeal of OHIM of 2 December 2011 (Case R 1235/2011‑1), relating to opposition proceedings between Teva Pharmaceutical Industries Ltd and Cytochroma Development, Inc.,

THE GENERAL COURT (Third Chamber),

composed of O. Czúcz, President, I. Labucka (Rapporteur) and D. Gratsias, Judges,

Registrar: T. Weiler, Administrator,

having regard to the application lodged at the Registry of the General Court on 29 February 2012,

having regard to the response lodged at the Court Registry on 15 June 2012,

further to the hearing on 19 February 2013,

gives the following

Judgment

 Background to the dispute

1        On 3 March 2005, Ineos Healthcare Ltd (‘Ineos Healthcare’) – the applicant’s predecessor in law – filed an application for registration of a Community trade mark at the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) pursuant to Council Regulation (EC) No 40/94 of 20 December 1993 on the Community trade mark (OJ 1994 L 11, p. 1), as amended (replaced by Council Regulation (EC) No 207/2009 of 26 February 2009 on the Community trade mark (OJ 2009 L 78, p. 1)).

2        Registration as a trade mark was sought for the word sign ALPHAREN.

3        The goods in respect of which registration was sought fall, following the restriction made during the proceedings before OHIM, within Class 5 of the Nice Agreement concerning the International Classification of Goods and Services for the Purposes of the Registration of Marks of 15 June 1957, as revised and amended, and correspond to the following description: ‘Pharmaceutical and veterinary preparations containing magnesium iron hydroxy carbonate or hydrotalcite or derivatives of these compounds; pharmaceutical and veterinary preparations for use in renal dialysis and in the treatment of renal diseases and kidney ailments; phosphate binders for use in the treatment of hyperphosphataemia’.

4        The Community trade mark application was published in Community Trade Marks Bulletin No 49/2005 of 5 December 2005.

5        On 6 March 2006, Teva Pharmaceutical Industries Ltd (‘Teva’) filed a notice of opposition under Article 42 of Regulation No 40/94 (now Article 41 of Regulation No 207/2009) against registration of the trade mark applied for, in respect of the goods referred to in paragraph 3 above.

6        The opposition was based on the following earlier marks:

–        the Hungarian word mark ALPHA D3, registered under the number 134972, designating goods in Class 5 corresponding to the following description: ‘pharmaceutical preparation for regulating calcium’;

–        the Lithuanian word mark ALPHA D3, registered under the number 20613, designating goods in Class 5 corresponding to the following description: ‘pharmaceutical preparation for calcium regulation’;

–        the Latvian word mark ALPHA D3 registered as No M30407, designating goods in Class 5 corresponding to the following description: ‘a pharmaceutical preparation being a calcium regulator’.

7        The grounds relied on in support of the opposition were those referred to in Article 8(1)(b) of Regulation No 40/94 (now Article 8(1)(b) of Regulation No 207/2009).

8        On 9 October 2007, the Opposition Division upheld the opposition in its entirety on the basis of the earlier Hungarian trade mark.

9        On 29 November 2007, Ineos Healthcare filed a notice of appeal at OHIM pursuant to Articles 57 to 62 of Regulation No 40/94 (now Articles 58 to 64 of Regulation No 207/2009) against the Opposition Division’s decision.

10      By decision of 24 March 2009 (‘the 2009 decision’), the Second Board of Appeal of OHIM dismissed the appeal. It held, in particular, that the earlier Hungarian mark could not be taken into consideration because there was no translation of the registration certificate into the language of the proceedings. According to the Board of Appeal, the fact that the opposition had been upheld solely on the basis of the earlier Hungarian mark was enough in itself to justify annulment of the decision of the Opposition Division. Nevertheless, on the view that a decision with the same operative part as that of the Opposition Division could be adopted at the time of the ruling on the appeal, the Board of Appeal continued with the examination of the other marks on which the opposition was based. In that regard, it pointed out, in particular, that the goods covered by the Latvian and Lithuanian registrations were identical to those covered by the earlier Hungarian trade mark and that the parties had had the opportunity to comment on all the facts of the case. It observed that the signs at issue demonstrated a certain degree of visual, phonetic and conceptual similarity. Likewise, it concluded that the goods were in part identical and in part similar. The Board of Appeal stated that that factor outweighed the lesser degree of similarity between the marks. It concluded, in essence, that there was a likelihood of confusion on the part of the average consumer, who is a member of the relevant public and, not having the same level of knowledge and ability in biochemistry and pharmacology as professionals in those fields, is more susceptible to such confusion.

11      On 1 June 2009, Ineos Healthcare brought an action before the General Court against the 2009 decision, which was registered as Case T‑222/09. In support of its action, it put forward four pleas in law, alleging respectively: (i) failure to adduce evidence of similarity between the goods; (ii) infringement of Article 73 of Regulation No 40/94 (now Article 75 of Regulation No 207/2009); (iii) infringement of Article 74 of Regulation No 40/94 (now Article 76 of Regulation No 207/2009); and (iv) infringement of Article 8(1)(b) of Regulation No 40/94.

12      By judgment of 9 February 2011 in Case T‑222/09 Ineos Healthcare v OHIMTeva Pharmaceutical Industries (ALPHAREN) [2011] ECR II‑183, the General Court upheld the action in part and annulled the 2009 decision in respect of the following categories: ‘pharmaceutical and veterinary preparations containing magnesium iron hydroxy carbonate or hydrotalcite or derivatives of these compounds’ (‘the Category A goods’), and the ‘phosphate binders for use in the treatment of hyperphosphataemia’ (‘the Category C goods’). The Court found, in particular, that, by relying on internet search results carried out of its own motion in order to find a similarity between, on the one hand, the Category A goods and the Category C goods and, on the other, the goods covered by the earlier Latvian and Lithuanian marks, the Board of Appeal had acted in breach of its obligation, under Article 76(1) of Regulation No 207/2009, to confine its examination to the facts, evidence and arguments provided by the parties. The action was dismissed as to the remainder.

13      By decision of 16 June 2011, the Presidium of the Boards of Appeal of OHIM remitted the case to the First Board of Appeal so that it could give a new decision, in accordance with Article 65(6) of Regulation No 207/2009.

14      On 23 September 2011, the rights attached to the application were transferred to Cytochroma Development, Inc. (‘Cytochroma Development’), the applicant in the present case.

15      By decision of 2 December 2011 (‘the contested decision’), the First Board of Appeal of OHIM rejected the application for a Community trade mark in respect of the Category A goods and the Category C goods and dismissed the appeal against the decision of the Opposition Division. It found, in particular, that there was a likelihood of confusion between the marks at issue. In order to find that the goods covered by the marks at issue were closely linked and complementary, it relied on evidence presented by the parties in the proceedings which gave rise to the 2009 decision and on evidence adduced by Teva in response to the communication of the Board of Appeal following the partial annulment of the 2009 decision.

 Forms of order sought

16      Cytochroma Development claims that the Court should:

–        annul the contested decision;

–        order OHIM to pay the costs.

17      OHIM contends that the Court should:

–        dismiss the action;

–        order Cytochroma Development to pay the costs.

 Law

18      In support of its action, Cytochroma Development relies on four pleas in law, alleging: (i) infringement of Article 1(d)(2) of Commission Regulation (EC) No 216/96 of 5 February 1996 laying down the rules of procedure of the Boards of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OJ 1996 L 28, p. 11), as amended; (ii) infringement of Article 65(6) of Regulation No 207/2009 and Article 1(d)(1) of Regulation No 216/96; (iii) infringement of Article 76(1) of Regulation No 207/2009; and (iv) breach of the principle of legal certainty and of the Charter of Fundamental Rights of the European Union (OJ 2010 C 83, p. 389).

 The first plea in law: infringement of Article 1(d)(2) of Regulation No 216/96

19      By its first plea in law, Cytochroma Development submits that OHIM infringed Article 1(d)(2) of Regulation No 216/96 inasmuch as Ms M. Bra, who was one of the members of the Second Board of Appeal of OHIM responsible for the 2009 decision, also sat on the First Board of Appeal, which examined the present case following the partial annulment of the 2009 decision. Moreover, Ms Bra was the rapporteur for both decisions.

20      Cytochroma Development adds that a member who participated in the adoption of two decisions would not be able to adjudicate neutrally and impartially in the present case following the partial annulment of the 2009 decision; rather, that person would seek to justify the 2009 decision ex post facto.

21      Although it accepts that the contested decision infringes Article 1(d)(2) of Regulation No 216/96, OHIM contends that that irregularity does not warrant the annulment of the contested decision since the parties were informed of the composition of the Board of Appeal examining the case in question. OHIM also states that an irregularity such as that in the present case justifies the annulment of a decision only if it is shown that, but for the irregularity, the decision might have been substantially different. Lastly, OHIM argues that, given that the First Board of Appeal did not base its decision on search results which were obtained in infringement of Article 76(1) of Regulation No 207/2009, Cytochroma Development’s argument that a member who sat on the Board which adopted the 2009 decision would be seeking to justify the initial decision ex post facto is unfounded.

22      OHIM also contends that, under Article 137(3) of Regulation No 207/2009, an objection to a member of a Board of Appeal is not admissible if, while being aware of a reason for objection, the objecting party has taken a procedural step. That is also the position here. Furthermore, OHIM stated at the hearing that Article 1(d)(2) of Regulation No 216/96 constitutes a specific rule which must be interpreted in the light of Article 137(3) of Regulation No 207/2009.

23      Article 1(d)(1) of Regulation No 216/96, as amended, provides that, if, pursuant to Article 65(6) of Regulation No 207/2009, the measures necessary to comply with a judgment of the Court of Justice annulling all or part of a decision of a Board of Appeal or of the Grand Board include re-examination by the Boards of Appeal of the case to which that decision relates, the Presidium is to decide if the case is to be referred to the Board which adopted that decision, or to another Board, or to the Grand Board.

24      Article 1(d)(2) of that regulation states that, if the case is referred to another Board, that Board must not comprise members who were party to the contested decision. That provision does not apply if the case is referred to the Grand Board.

25      In the present case, the 2009 decision was adopted by the Second Board of Appeal. By decision of 16 June 2011, after the 2009 decision had been annulled in part by the General Court, the Presidium of the Boards of Appeal referred the case to the First Board of Appeal, that is to say, to another Board of Appeal, in accordance with Article 1(d)(1) of Regulation No 216/96. It follows that, under Article 1(d)(2) of that regulation, the First Board of Appeal should not have included a member of the Second Board of Appeal which adopted the 2009 decision.

26      Ms Bra, who was a member of the Second Board of Appeal at the time of the adoption of the 2009 decision, was also a member of the First Board of Appeal at the time of the adoption of the contested decision.

27      It must therefore be held that OHIM infringed Article 1(d)(2) of Regulation No 216/96 inasmuch as Ms Bra was a member of both the Boards of Appeal which adopted the decisions in the present case. Moreover, it is also necessary to take into account the fact that Ms Bra was the rapporteur for both decisions.

28      As regards Article 137 of Regulation No 207/2009, which OHIM relies on, that provision concerns the exclusion of, and objections to, members of the Boards of Appeal, among others. One of the provisions laid down under Article 137(1) of that regulation is that members of the Boards of Appeal may not take part in any proceedings if they have any personal interest therein or if they have previously been involved as representatives of one of the parties. Similarly, they may not take part in appeal proceedings if they participated in the decision under appeal. It is also stated in Article 137(3) of that regulation that members of a Board of Appeal may be objected to by any party for one of the reasons mentioned in Article 137(1), or if suspected of partiality. However, an objection will not be admissible if, while being aware of a reason for objection, the objecting party has taken a procedural step.

29      In the present case, the referral by the Presidium of the Boards of Appeal, after the partial annulment of the initial decision by the General Court, to another Board of Appeal is not one of the cases for exclusion or objection provided for under Article 137 of Regulation No 207/2009. It follows that the conditions under which the objection may be regarded as admissible are not applicable in the present case.

30      Furthermore, it must be borne in mind that Article 1(d) of Regulation No 216/96, relating to the referral of a case following a ruling of the Court of Justice, does not prohibit the referral of a case, after the annulment of a decision by the General Court, to the same Board of Appeal, but provides that, if there is a referral to another Board of Appeal, none of the members of that Board must have been party to the decision. Similarly, the procedure to be followed in the case of an exclusion or objection is set out in Article 3 of Regulation No 216/96. It follows that OHIM cannot claim that Article 1(d) of Regulation No 216/96 must be interpreted in the light of Article 137 of Regulation No 207/2009.

31      Lastly, it is beside the point in the present case for OHIM to argue that that irregularity should not result in the annulment of the contested decision because it has not been shown that, but for that irregularity, the decision would have been different. Given that the composition of the Board of Appeal adopting a decision is a stage prior to the taking of the decision and that it has a crucial influence on the content of that decision, it is not possible either to affirm or to deny that the replacement of a member of a Board of Appeal means that the decision which that Board has to take will be different. OHIM’s arguments relating to the effect of the infringement of Article 1(d)(2) of Regulation No 216/96 on the content of the contested decision are therefore wholly speculative in the present case.

32      The present plea must therefore be upheld and the contested decision must be annulled. Given, however, that if OHIM is confronted merely with a finding that that unlawful aspect vitiates the contested decision, it will simply give a decision in the present case by means of a Board of Appeal of another composition, the Court considers it appropriate to examine the other pleas put forward by Cytochroma Development.

 The second and fourth pleas: respectively, infringement of Article 65(6) of Regulation No 207/2009 and Article 1(d)(1) of Regulation No 216/96 and breach of the principle of legal certainty and the Charter of Fundamental Rights of the European Union

33      By its second plea, Cytochroma Development submits that, in re‑examining the case, OHIM infringed Article 65(6) of Regulation No 207/209. According to Cytochroma Development, since nothing in the operative part of the ALPHAREN judgment meant that a re-examination was required, it was not open to OHIM to undertake such a re-examination, and the Board of Appeal should merely have rejected the opposition as regards the goods in respect of which the 2009 decision had been annulled.

34      According to Cytochroma Development, the possibility for OHIM to re‑examine a case in the wake of a judgment of the General Court annulling the decision of a Board of Appeal is conditional upon ‘necessity’, a criterion that must be interpreted strictly. In the present case, that criterion is not satisfied.

35      By its fourth plea in law, Cytochroma Development submits that, by carrying out a re‑examination of the case and, in particular, by asking the parties to present facts, evidence and arguments in support of their position, without respecting that criterion of ‘necessity’, the Board of Appeal acted in breach of the principle of legal certainty and the right to property laid down in Article 17 of the Charter of Fundamental Rights.

36      OHIM disputes Cytochroma Development’s arguments.

37      According to settled case-law, a judgment annulling a measure – such as the ALPHAREN judgment – takes effect ex tunc and accordingly has the effect of retroactively eliminating the annulled measure from the legal system (Joined Cases 97/86, 99/86, 193/86 and 215/86 Asteris and Others v Commission [1988] ECR 2181, paragraph 30; Joined Cases T‑481/93 and T‑484/93 Exporteurs in Levende Varkens and Others v Commission [1995] ECR II‑2941, paragraph 46; and Case T‑171/99 Corus UK v Commission [2001] ECR II‑2967, paragraph 50).

38      The same line of authority makes it clear that, in order to comply with the judgment annulling the measure and to give it full effect, the institution that issued the measure annulled is required to have regard not only to the operative part of the judgment but also to the grounds which led to that ruling and which constitute its essential basis, in so far as they are necessary for the purposes of determining the exact meaning of what is stated in the operative part. It is those grounds which, on the one hand, identify the precise provision held to be illegal and, on the other, indicate the specific reasons which underlie the finding of illegality made in the operative part and which the institution concerned must take into account when replacing the annulled measure (order in Case C‑8/99 P Gómez de Enterría y Sanchez v Parliament [2000] ECR I‑6031, paragraphs 19 and 20; and judgment of 17 December 2003 in Case T‑324/02 McAuley v Council, paragraph 56 and the case-law cited).

39      Article 1(d)(1) of Regulation No 216/96, as amended, provides – as regards the referral of a case following a judgment of the Courts of the European Union – that, if, pursuant to Article 65(6) of Regulation No 207/2009, the measures necessary to comply with a judgment of the Court of the European Union annulling all or part of a decision of a Board of Appeal or of the Grand Board of OHIM include re-examination by the Boards of Appeal of the case which was the subject of that decision, the Presidium is to decide if the case is to be referred to the Board which adopted that decision, or to another Board, or to the Grand Board of OHIM.

40      In the present case, following annulment of the 2009 decision, the appeal brought by Cytochroma Development before the Board of Appeal again became pending. In order to comply with its obligation under Article 65(6) of Regulation No 207/2009 to take the measures necessary to comply with the General Court’s judgment, OHIM had to ensure that the appeal led to a new decision of a Board of Appeal. That was indeed what occurred because the case was referred to the First Board of Appeal, which adopted the contested decision.

41      Cytochroma Development disputes the legality of the referral and submits that, in the light of ALPHAREN, the opposition should have been rejected, as the General Court found that there was no likelihood of confusion between the marks at issue.

42      Such an argument cannot succeed, however. By the ALPHAREN judgment, the General Court annulled the 2009 decision, as regards the Category A goods and the Category C goods, on procedural grounds alone, as has been mentioned in paragraph 12 above, but in no way ruled on the question whether or not there was a likelihood of confusion between the marks at issue. It follows that, in accordance with the case-law referred to in paragraphs 37 and 38 above, OHIM was required to re-open the proceedings and to rule again on the opposition as regards the Category A goods and the Category C goods, in order to reach a new decision while having due regard for the operative part and the grounds of the ALPHAREN judgment.

43      Moreover, and without there being any need to rule on whether it is well-founded, the criterion of necessity relied on by Cytochroma Development was not, in any event, infringed, given that, in the ALPHAREN judgment, the General Court did not examine the merits and, in particular, it did not consider whether there was a likelihood of confusion between the marks at issue. It does not follow from the finding made in paragraph 34 of the ALPHAREN judgment – according to which it was not possible to conclude that there was a likelihood of confusion between, on the one hand, the Category A goods and the Category C goods and, on the other, the goods covered by the earlier Latvian and Lithuanian marks without having recourse to the disputed research – that there was no likelihood of confusion between those goods. Consequently, OHIM was required to carry out a new examination of the similarity of the goods, albeit without referring to that research.

44      As regards the fourth plea raised by Cytochroma Development, alleging that the Board of Appeal acted in breach of the principle of legal certainty, it must be stated that, by partially annulling the 2009 decision, the ALPHAREN judgment in no way gave the assurance that the mark applied for could be registered in respect of the Category A goods and the Category C goods. It follows that Cytochroma Development’s head of claim relating to an alleged breach of the principle of legal certainty must be rejected, inasmuch as it is manifestly unfounded.

45      As regards the alleged infringement of the right to intellectual property laid down in Article 17 of the Charter of Fundamental Rights, it must be borne in mind that the fundamental nature of the right to intellectual property as derived, according to Cytochroma Development, from Article 17(2) of the Charter of Fundamental Rights, which provides that ‘[i]ntellectual property shall be protected’, is not absolute and that the Community trade mark exists, inter alia, within the limits imposed by Article 4 of Regulation No 207/2009, read in conjunction with Articles 7 and 8 of that regulation (Case T‑439/04 Eurohypo v OHIM (EUROHYPO) [2006] ECR II‑1269, paragraph 21).

46      Lastly, it must be stated, as regards the judgment of the European Court of Human Rights of 11 January 2007 in Anheuser-Busch Inc. v. Portugal [GC] (no. 73049/01, ECHR 2007‑1), relied on by Cytochroma Development, that, although an application for registration of a mark gives its proprietor a set of proprietary rights, it is also apparent from paragraph 78 of the judgment that those rights may be revoked under certain conditions and are conditional on account of the fact that registration of the mark will become final only if the mark does not infringe legitimate third-party rights. As it is, in the present case, the fact remains that such conditions are not satisfied because Cytochroma Development’s application for registration gave rise to a challenge from Teva, which opposed the registration of the mark applied for. Consequently, Cytochroma Development cannot rely on the existence of an intellectual property right to prevent the Board of Appeal from ruling again in the present case following the partial annulment of the 2009 decision.

47      In the light of all of the foregoing, the second and fourth pleas must be rejected.

 The third plea: infringement of Article 76(1) of Regulation No 207/2009

48      By its third plea, Cytochroma Development submits that, despite the ALPHAREN judgment, the First Board of Appeal did not confine itself in paragraphs 42, 47 and 58 of the contested decision to the facts, evidence and arguments provided by the parties, and considered itself entitled to carry out an examination of the facts ex officio, even in a case concerning relative grounds for refusal. The First Board of Appeal thereby infringed Article 76(1) of Regulation No 207/2009.

49      OHIM disputes those arguments.

50      It must be noted as a preliminary point that, under Article 76(1) of Regulation No 207/2009, ‘in proceedings relating to relative grounds for refusal of registration, [OHIM] shall be restricted in this examination to the facts, evidence and arguments provided by the parties and the relief sought’.

51      That provision relates, in particular, to the factual basis for OHIM decisions, that is to say, the facts and evidence on which those decisions may be validly based. Accordingly, when hearing an appeal against a decision terminating opposition proceedings, the Board of Appeal may base its decision only on the facts and evidence which the parties have presented. However, the restriction of the factual basis of the examination undertaken by the Board of Appeal does not preclude it from taking into consideration, in addition to the facts expressly put forward by the parties to the opposition proceedings, facts which are well known, that is to say, facts which are likely to be known by anyone or which may be learned from generally accessible sources (see Case T‑185/02 Ruiz-Picasso and Others v OHIM – DaimlerChrysler (PICARO) [2004] ECR II‑1739, paragraphs 28 and 29 and the case-law cited, and the judgment of 24 September 2008 in Case T‑179/07 Anvil Knitwear v OHIM – Aprile e Aprile (Aprile), not published in the ECR, paragraph 71).

52      In the present case, as is apparent from the ALPHAREN judgment (paragraphs 30 to 32), the 2009 decision was annulled as regards the Category A goods and the Category C goods inasmuch as, in essence, the Board of Appeal relied on the results of internet research which could not be regarded as well-known facts.

53      However, according to Cytochroma Development, the Board of Appeal relied on the same information in paragraphs 42, 47 and 58 of the contested decision.

54      On that point, it is true that, in paragraph 58 of the contested decision, the Board of Appeal took the view that neither Article 76(1) of Regulation No 207/2009 nor the ALPHAREN judgment precluded it from relying, when assessing a matter of law ex officio, on information revealed by a preliminary investigation carried out of its own motion, provided that such information was brought into the proceedings by the Board of Appeal and the parties were given the opportunity to comment upon them, in accordance with Articles 63(2) and 78(1) of Regulation No 207/2009.

55      First, however, it is apparent from paragraph 59 of the contested decision that, according to the Board of Appeal, the information filed solely by the parties in the proceedings which led to the 2009 decision, together with the information filed by Teva in reply to the Board of Appeal’s communication, was sufficient for it to rule on the similarity of the goods at issue, with no need to rely on the documents discovered through its own preliminary investigation.

56      Secondly, that finding is borne out by paragraphs 65 to 78 of the contested decision, from which it is clear that, for the purposes of assessing the similarity of the goods at issue, the Board of Appeal did not rely on the information which had made the 2009 decision unlawful. It follows that the Board of Appeal’s considerations in paragraphs 42, 47 and 58 of the contested decision must be regarded as having been included for the sake of completeness.

57      According to settled case-law, heads of claim levelled at reasons which are included in a decision for the sake of completeness cannot result in the annulment of that decision and are therefore ineffective (see order of 25 September 2008 in Case T‑294/07 Stepek v OHIM – Masters Golf Company (GOLF‑FASHION MASTERS THE CHOICE TO WIN), not published in the ECR, paragraph 17 and the case-law cited; see also, to that effect, Joined Cases T‑241/05, T‑262/05 to T‑264/05, T‑346/05, T‑347/05 and T‑29/06 to T‑31/06 Procter & Gamble v OHIM (Square white tablet with coloured floral design) [2007] ECR II‑1549, paragraph 89).

58      Consequently, the present plea must be rejected as ineffective.

59      It follows from all of the foregoing that the contested decision must be annulled.

 Costs

60      Under Article 87(2) of the Rules of Procedure of the General Court, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings.

61      Since OHIM has been unsuccessful, it must be ordered to pay the costs, in accordance with the form of order sought by Cytochroma Development.

On those grounds,

THE GENERAL COURT (Third Chamber)

hereby:

1.      Annuls the decision of the First Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) of 2 December 2011 (Case R 1235/2011‑1);

2.      Orders OHIM to pay the costs.

Czúcz

Labucka

Gratsias

Delivered in open court in Luxembourg on 3 July 2013.

[Signatures]