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Case T-109/09: Action brought on 17 March 2009 — Rintisch v OHIM — Valfeuri Pates Alimentaires (PROTIVITAL)
ECLI:EU:UNKNOWN:62009TN0109
62009TN0109
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Valentina R., lawyer
16.5.2009
Official Journal of the European Union
C 113/41
(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.