Case T-124/02: Action brought on 17 April 2002 by Sunrider Corporation against the Office for Harmonisation in the Internal Market (Trade Marks and Designs)
Date: 2002-06-29
Institutions: Court of First Instance
Subjects: EU trade mark, European Union Intellectual Property Office, action for annulment (EU), brand name

29.6.2002

EN

Official Journal of the European Communities

C 156/35

Pleas in law and main arguments

The applicant claims that the Court should:

Person applying to regis-
ter the Community trade
mark:

Community trade mark
concerned:

Proprietor of the trade
mark or distinctive sign
relied on in the oppo-
sition proceedings:

Trade mark or distinc-
tive sign relied on in the
opposition proceedings:

D.J. Debuschewits

CHUFAFIT — application for
registration No 1021229 —
application in respect of goods in
Classes 29 and 31.

The applicant company.

Spanish Trade Mark CHUFI, regis-
tered in respect of goods
in
Class 29, and Spanish graphic-
denominative mark CHUFI, with
specific distinction, registered in
respect of goods in Class 31.

Decision of the Oppo-
sition Division:

Appeal against the Opposition

Decision of the Board of
Appeal:

Appeal against the decision of the
Opposition Division dismissed.

Grounds of appeal:

application

of
Unlawful
Article 8(1)(b) of Regulation
(EC) 40/94 on the Community
Trade Mark.

Action brought on 17 April 2002 by Sunrider Corpor-
ation against the Office for Harmonisation in the Internal
Market (Trade Marks and Designs)

(Case T-124/02)

(2002/C 156/65)

(Language of the case to be determined pursuant to Article 131(2)
of the Rules of Procedure — language in which the application was
submitted: German)

An action against the Office for Harmonisation in the Internal
Market (Trade Marks and Designs) was brought before the
Court of First Instance of the European Communities on
17 April 2002 by Sunrider Corporation, Torrance (USA),
represented by A. Kockläuner, lawyer. Vitakraft-Werke Wühr-
mann & Sohn, Bremen (Germany), was an additional party to
the proceedings before the Board of Appeal.

— partially annul Decision R 368/2000-2 of the Second
Board of Appeal of 17 January 2002 to the extent that
the applicant was ordered to bear its own costs in the
opposition and appeal proceedings and that reimburse-
ment of the appeal fee was not ordered;

— order the Office to pay the costs.

Pleas in law and main arguments

The applicant filed an application for registration of the word
mark ‘VITATASTE’ in respect of goods in Classes 5 and 29 at
the Office for Harmonisation in the Internal Market (appli-
cation no 156463). Vitakraft-Werke Wührmann & Sohn
opposed that application. The opposition was based on the
German marks ‘VITAKRAFT’ and ‘VITA’ in respect of goods in
Class 5.

As a result of a private settlement with the opposing party, the
applicant limited the category of goods by removing some of
the goods claimed in Class 5. The opposing party later
withdrew its opposition but sought a decision on costs.

The Opposition Division decided that the applicant should
bear the costs of the opposition procedure. The Board of
Appeal set this decision aside and ordered each of the parties
to pay its own costs in respect of the opposition and appeal
proceedings.

The applicant is appealing against the decision of the Board of
Appeal and claims that Article 81(4) of Council Regulation
(EC) No 40/94 (1), not Article 81(3), is applicable in the present
case. Furthermore, the defendant failed to consider that the
requirements of Rule 51 of the implementing regulation (2)
were satisfied so that the Board of Appeal should have ordered
reimbursement of the appeal fee. Finally, the Board of Appeal
failed to comply with its obligation to state reasons.

(1) Council Regulation (EC) No 40/94 of 20 December 1993 on the

Community trade mark (OJ 1994 L 11, p. 1)

(2) Commission Regulation (EC) No 2868/95 of 13 December
1995 implementing Council Regulation (EC) No 40/94 on the
Community trade mark (OJ 1995 L 303, p. 1)