EN

Official Journal of the European Union

C 102/21

(Case T-62/09)

2009/C 102/34

Language in which the application was lodged: English

Parties

Applicant: 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: Bariatrix Europe Inc. SAS (Guilherand Granges, 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 15 December 2008 in case R 740/2008-4; 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 “PROTI SNACK”, for goods in classes 5, 29, 30 and 32 — application No 4 992 145

Proprietor of the mark or sign cited in the opposition proceedings: The applicant

Mark or sign cited: German trade mark registration No 39 702 429 of the word mark “PROTI” for goods in classes 29 and 32; German trade mark registration No 39 608 644 of the figurative mark “PROTIPOWER” for goods in classes 29 and 32; German trade mark registration No 39 549 559 of the word mark “PROTIPLUS” for goods in classes 29 and 32; German trade mark registration No 39 629 195 of the trade word “PROTITOP” for goods in classes 29, 30 and 32

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 provide an assessment on the merits of the opposition; Infringement of Article 74(2) of Council Regulation 40/94 as the Board of Appeal refused to exercise its discretion or at least failed to state how it exercised such discretion; Misuse of power as the Board of Appeal failed to take into account documents and evidence submitted by the applicant.