# C_2007042EN.01002601.xml

| 24.2.2007 | EN | Official Journal of the European Union | C 42/26 |
| --- | --- | --- | --- |

24.2.2007

EN

Official Journal of the European Union

C 42/26

---

Action brought on 13 December 2006 — Rath v OHIM — Grandel (Epican)

(Case T-374/06)

(2007/C 42/46)

Language in which the application was lodged: German

Parties

Applicant: Matthias Rath (Cape Town, South Africa) (represented by: S. Ziegler, C. Kleiner and F. Dehn, lawyers)

Applicant:

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

Defendant:

Other party to the proceedings before the Board of Appeal of OHIM: Dr. Grandel GmbH

Other party to the proceedings before the Board of Appeal of OHIM:

Form of order sought

The applicant claims that the Court should:

| — | set aside the decision of the First Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) of 5 October 2006 in so far as it refuses to allow the Community trade mark application in respect of the goods in Class 5 ‘food supplements not for medical purposes, mainly consisting of vitamins, amino acids, minerals and trace elements; dietetic substances not adapted for medical use, namely amino acids and trace elements; the aforesaid goods not for use as antiepileptics’; |
| --- | --- |

—

set aside the decision of the First Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) of 5 October 2006 in so far as it refuses to allow the Community trade mark application in respect of the goods in Class 5 ‘food supplements not for medical purposes, mainly consisting of vitamins, amino acids, minerals and trace elements; dietetic substances not adapted for medical use, namely amino acids and trace elements; the aforesaid goods not for use as antiepileptics’;

| — | order OHIM to pay the costs. |
| --- | --- |

—

order OHIM to pay the costs.

Pleas in law and main arguments

Applicant for a Community trade mark: The applicant

Applicant for a Community trade mark:

Community trade mark concerned: The word mark ‘Epican’ for goods in Classes 5, 30 and 32 (Application No 2 524 510)

Community trade mark concerned:

Proprietor of the mark or sign cited in the opposition proceedings: Dr. Grandel GmbH

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

Mark or sign cited in opposition: The word mark ‘EPIGRAN’ originally registered for goods in Classes 1, 3 and 5 and now registered only for goods in Class 3 (Community trade mark No 560 292), albeit that the opposition was brought solely against the registration in Class 5

Mark or sign cited in opposition:

Decision of the Opposition Division: Opposition granted, partial refusal to register

Decision of the Opposition Division:

Decision of the Board of Appeal: Partial annulment of the decision of the Opposition Division

Decision of the Board of Appeal:

Pleas in law: The contested decision infringes Article 8(1)(b) of Regulation No 40/94 (1) as there is no likelihood of confusion between the marks in opposition.

Pleas in law:

1

---

(1)  Council Regulation (EC) No 40/94 of 20 December 1993 on the Community trade mark (OJ 1994 L 11, p. 1).

1

---