Source: EURLEX
Language: en
Format: md

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- D.J. Debuschewits — partially annul Decision R 368/2000-2 of the Second
ter the Community trade Board of Appeal of 17 January 2002 to the extent that
mark: the applicant was ordered to bear its own costs in the
opposition and appeal proceedings and that reimburseCommunity trade mark CHUFAFIT — application for ment of the appeal fee was not ordered;
concerned: registration No 1021229 —
application in respect of goods in
Classes 29 and 31. — order the Office to pay the costs.

Proprietor of the trade The applicant company.
mark or distinctive sign
relied on in the opposition proceedings:
_Pleas in law and main arguments_

Trade mark or distinc- Spanish Trade Mark CHUFI, registive sign relied on in the tered in respect of goods in
opposition proceedings: Class 29, and Spanish graphicThe applicant filed an application for registration of the word
denominative mark CHUFI, with
mark ‘VITATASTE’ in respect of goods in Classes 5 and 29 at
specific distinction, registered in
the Office for Harmonisation in the Internal Market (applirespect of goods in Class 31.
cation no 156463). Vitakraft-Werke Wührmann & Sohn
opposed that application. The opposition was based on the
Decision of the Oppo- Appeal against the Opposition
German marks ‘VITAKRAFT’ and ‘VITA’ in respect of goods in
sition Division: Class 5.

Decision of the Board of Appeal against the decision of the
Appeal: Opposition Division dismissed.
As a result of a private settlement with the opposing party, the
Grounds of appeal: Unlawful application of applicant limited the category of goods by removing some of
Article 8(1)(b) of Regulation the goods claimed in Class 5. The opposing party later
(EC) 40/94 on the Community withdrew its opposition but sought a decision on costs.
Trade Mark.

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.
**Action brought on 17 April 2002 by Sunrider Corpor-**
**ation against the Office for Harmonisation in the Internal**
**Market (Trade Marks and Designs)**
The applicant is appealing against the decision of the Board of
Appeal and claims that Article 81(4) of Council Regulation
**(Case T-124/02)** (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] )
(2002/C 156/65)
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.
_(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)_

( [1] ) Council Regulation (EC) No 40/94 of 20 December 1993 on the
Community trade mark (OJ 1994 L 11, p. 1)
An action against the Office for Harmonisation in the Internal
( [2] ) Commission Regulation (EC) No 2868/95 of 13 December
Market (Trade Marks and Designs) was brought before the 1995 implementing Council Regulation (EC) No 40/94 on the
Court of First Instance of the European Communities on Community trade mark (OJ 1995 L 303, p. 1)
17 April 2002 by Sunrider Corporation, Torrance (USA),
represented by A. Kockläuner, lawyer. Vitakraft-Werke Wührmann & Sohn, Bremen (Germany), was an additional party to
the proceedings before the Board of Appeal.