EN

Official Journal of the European Union

C 38/73

(Case T-713/15)

(2016/C 038/99)

Language in which the application was lodged: English

Parties

Applicant: Pharm-a-care Laboratories Pty. Ltd (Sydney, Australia) (represented by: I. De Freitas, Solicitor)

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

Other party to the proceedings before the Board of Appeal: Pharmavite LLC (California, United States)

Details of the proceedings before OHIM

Proprietor of the trade mark at issue: Applicant

Trade mark at issue: Community word mark ‘VITAMELTS’ — Community trade mark No 11 403 581

Procedure before OHIM: Proceedings for a declaration of invalidity

Contested decision: Decision of the First Board of Appeal of OHIM of 10 September 2015 in Case R 2649/2014-1

Form of order sought

The applicant claims that the Court should:

—annul the contested decision;

—confirm the decision of the Cancellation Division in its entirety so that Application for Revocation No. 8627 C is rejected;

—order OHIM and Pharmavite LLC to pay the Appellant’s costs in relation to these proceedings.

Pleas in law

—The Board of Appeal infringed Article 52(1)(b) of Regulation No 207/2009. It erred in law in finding that the Appellant has acted in bad faith when filing the application for registration of the contested trade mark;

—The Board of Appeal’s decision is based, in part, on an infringement of an essential procedural requirement, namely the failure to provide the Appellant with an opportunity to respond to evidence submitted by the Cancellation Applicant.