CELEX: C2002/156/65
Language: en
Date: 2002-06-29 00:00:00
Title: 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)

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 reimburse-
Community 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 oppo-
sition proceedings:
                                                                        Pleas in law and main arguments
Trade mark or distinc-        Spanish Trade Mark CHUFI, regis-
tive sign relied on in the    tered in respect of goods in
opposition proceedings:       Class 29, and Spanish graphic-            The 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 (appli-
                              respect 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
(Language of the case to be determined pursuant to Article 131(2)       failed to comply with its obligation to state reasons.
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 Wühr-
mann & Sohn, Bremen (Germany), was an additional party to
the proceedings before the Board of Appeal.