# C_2009153EN.01004201.xml

| 4.7.2009 | EN | Official Journal of the European Union | C 153/42 |
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4.7.2009

EN

Official Journal of the European Union

C 153/42

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Action brought on 11 April 2009 — Rintisch v OHIM — Valfeuri Pates Alimentaires (PROTIACTIVE)

(Case T-152/09)

2009/C 153/82

Language in which the application was lodged: English

Parties

Parties

Applicants: Bernhard Rintisch (Bottrop, Germany) (represented by: A. Dreyer, lawyer)

Applicants:

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

Defendant:

Other party to the proceedings before the Board of Appeal: Valfeuri Pates Alimentaires SA (Wittenheim, France)

Other party to the proceedings before the Board of Appeal:

Form of order sought

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 3 February 2009 in case R 1661/2007-4; and |
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Annul the decision of the Fourth Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 3 February 2009 in case R 1661/2007-4; and

| — | Order OHIM to pay the costs |
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Order OHIM to pay the costs

Pleas in law and main arguments

Pleas in law and main arguments

Applicant for the Community trade mark: The other party to the proceedings before the Board of Appeal

Applicant for the Community trade mark:

Community trade mark concerned: The word mark “PROTIACTIVE”, for goods in classes 5, 29 and 30 — application No 4 843 348

Community trade mark concerned:

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

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

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

Mark or sign cited:

Decision of the Opposition Division: Rejected the opposition

Decision of the Opposition Division:

Decision of the Board of Appeal: Dismissed the appeal

Decision of the Board of Appeal:

Pleas in law: Infringement of Article 8(1)(b) of Council Regulation 40/94 (1) (which became Article 8(1)(b) of Council Regulation 207/2009) as the Board of Appeal failed to assess the opposition on its merits; Infringement of Article 74(2) of Council Regulation 40/94 (which became Article 76(2) of Council Regulation 207/2009) 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.

Pleas in law:

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(1)  Replaced by Council Regulation (EC) No 207/2009 of 26 February 2009 on the Community trade mark, OJ L 78, p. 1

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