Case T-373/06: Action brought on 13 December 2006 — Rath v OHIM — Grandel (Epican Forte)
Date: 2007-02-24
Institutions: Court of First Instance
Subjects: EU trade mark, European Union Intellectual Property Office, action for annulment (EU), dietary product, food supplement, pharmaceutical product, trade-mark law

24.2.2007

EN

Official Journal of the European Union

C 42/25

Finally, the contested decision infringes the principle of sound
administration, in that the applicant was forced by that decision
to bring a new action against a decision pending before the
courts at the time of bringing that action.

Decision of the Board of Appeal: Dismissal of the appeal.

Pleas in law: The contested decision infringes Article 8(1)(b) of
Regulation (EC) No 40/94 (1), in as much as there is no likeli-
hood of confusion between the opposing marks.

(1) Council Regulation (EEC) No 4253/88 of 19 December 1988, laying
down provisions for implementing Regulation (EEC) No 2052/88 as
regards coordination of the activities of the different Structural Funds
between themselves and with the operations of the European Invest-
ment Bank and the other existing financial instruments (OJ 1988 L
374, p. 1).

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

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

Action brought on 11 December 2006 — Bomba Energia
Getränke v OHIM — Eckes-Granini (Bomba)

(Case T-372/06)

(2007/C 42/44)

Language in which the application was lodged: German

Parties

Applicant: Bomba Energia Getränke Vertriebs GmbH (Wiener
Neudorf, Austria) (represented by: A. Kockläuner, lawyer)

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

Other party to the proceedings before the Board of Appeal: Eckes-
Granini GmbH & Co. KG (Nieder-Olm, Germany)

Form of order sought

— annul

in its entirety the decision of the Second Board of
Appeal of OHIM of 3 October 2006 in Appeal Case R 184/
2005-2;

— order the defendant to pay the costs of the proceedings.

Pleas in law and main arguments

Applicant for a Community trade mark: The applicant.

Community trade mark concerned: The word mark ‘Bomba’ for
goods in Classes 32 and 33 (Application No 558 874).

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

(Case T-373/06)

(2007/C 42/45)

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)

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

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

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’;

— order OHIM to pay the costs.

Pleas in law and main arguments

Proprietor of the mark or sign cited in the opposition proceedings:
Eckes-Granini GmbH & Co. KG.

Applicant for a Community trade mark: The applicant

Mark or sign cited in opposition: Various word and figurative
marks ‘la bamba’, including the German word mark ‘la bamba’
for goods in Classes 29, 32 and 33.

Community trade mark concerned: The word mark ‘Epican Forte’
for goods in Classes 5, 30 and 32 (Application No 2 525 251)

Decision of the Opposition Division: Rejection of the application.

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

C 42/26

EN

Official Journal of the European Union

24.2.2007

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

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

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

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.

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

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

Pleas in law and main arguments

Applicant for a Community trade mark: The applicant

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

for

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

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

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

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

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.

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

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

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

(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)

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

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

Form of order sought

Action brought on 14 December 2006 — Viega v Commis-
sion

(Case T-375/06)

(2007/C 42/47)

Language of the case: German

Parties

Applicant: Viega GmbH & Co. KG (Attendorn, Germany) (repre-
sented by: J. Burrichter, T. Mäger and F.W. Bulst, lawyers)

Defendant: Commission of the European Communities

The applicant claims that the Court should:

Form of order sought

— 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’;

— Declare Article 1(1) of the decision void, in so far as it finds
an infringement by the applicant of Article 81(1) EC and
Article 53(1) of the EEA Agreement;

— declare Article 2 of the decision void, in so far as it imposes

a fine of EUR 54.29 million on the applicant;

— in the alternative, make an appropriate reduction in the fine

imposed on the applicant in Article 2 of the decision;

— order OHIM to pay the costs.

— order the defendant to pay the costs.