16.5.2009
EN
Official Journal of the European Union
C 113/41
Action brought on 17 March 2009 — Rintisch v OHIM — Valfeuri Pates Alimentaires (PROTIVITAL)
(Case T-109/09)
2009/C 113/82
Language in which the application was lodged: English
Parties
Applicants: Bernhard Rintisch (Bottrop, Germany) (represented by: A. Dreyer, lawyer)
Defendant: Office for Harmonisation in the Internal Market (Trade Marks and Designs)
Other party to the proceedings before the Board of Appeal: Valfeuri Pates Alimentaires SA (Wittenheim, France)
Form of order sought
—
Annul the decision of the Fourth Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 21 January 2009 in case R 1660/2007-4; and
—
Order OHIM to pay the costs
Pleas in law and main arguments
Applicant for the Community trade mark: The other party to the proceedings before the Board of Appeal
Community trade mark concerned: The word mark ‘PROTIVITAL’, for goods in classes 5, 29 and 30 — application No 4 843 331
Proprietor of the mark or sign cited in the opposition proceedings: The applicant
Mark or sign cited: German trade mark registration of the word mark ‘PROTI’ for goods in classes 29 and 32; German trade mark registration of the figurative mark ‘PROTIPOWER’ for goods in classes 5, 29 and 32; German trade mark registration of the word mark ‘PROTIPLUS’ for goods in classes 5, 29 and 32; German trade mark registration of the trade word ‘PROTITOP’ for goods in classes 5, 29, 30 and 32; Community trade mark registration of the word mark ‘PROTI’ for goods in classes 5 and 29
Decision of the Opposition Division: Rejected the opposition
Decision of the Board of Appeal: Dismissed the appeal
Pleas in law: Infringement of Article 8(1)(b) of Council Regulation 40/94 as the Board of Appeal failed to assess the opposition on its merits; Infringement of Article 74(2) of Council Regulation 40/94 as the Board of Appeal failed to exercise discretion or at least failed to state reasons how it exercised discretion; Misuse of power as the Board of Appeal erred by not taking into account documents and evidence submitted by the applicant.
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