Judgment — ECLI:EU:T:2011:763
Date: 2011-12-16
Language of the case: English
Court formation: Seventh Chamber
Subject matter: Trade marks;Intellectual, industrial and commercial property
Procedure: Action for annulment - unfounded;Action for annulment - inadmissible
Origin: Germany

Action brought on 11 April 2009 - Rintisch v OHIM - Valfeuri Pates Alimentaires (PROTIACTIVE) (Case T-152/09) 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 3 February 2009 in case R 1661/2007-4; 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 "PROTIACTIVE", for goods in classes 5, 29 and 30 - application No 4 843 348 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 40/941 (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. ____________ 1 - Replaced by Council Regulation (EC) No 207/2009 of 26 February 2009 on the Community trade mark, OJ L 78, p. 1