Action brought on 25 May 2012 - Sunrider v OHIM - Nannerl (SUN FRESH)

(Case T-221/12)

Language in which the application was lodged: English

Parties

Applicant: The Sunrider Corp. (United States) (represented by: N. Dontas and E. Markakis, lawyers)

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

Other party to the proceedings before the Board of Appeal: Nannerl GmbH & Co. KG (Anthering bei Salzburg, Austria)

Form of order sought

Declare the present action admissible;

Annul the decision of the Fourth Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 26 March 2012 in case R 2401/2010-4;

Order OHIM to pay the costs incurred by the applicant in the course of the present proceedings before the General Court; and

Order OHIM to pay the costs necessarily incurred by the applicant in the course of the underlying proceedings before the Fourth Board of Appeal.

Pleas in law and main arguments

Applicant for a Community trade mark: The other party to the proceedings before the Board of Appeal

Community trade mark concerned: The word mark "SUN FRESH", for goods in class 32 - Community trade mark application No 6171433

Proprietor of the mark or sign cited in the opposition proceedings: The applicant

Mark or sign cited in opposition: Community trade mark registration No 605014 of the word mark "SUNNY FRESH", for goods in class 5; UK trade mark registration No 2016689 for the figurative mark in black and white "SUNRIDER SUNNY FRESH", for goods in class 32; Irish trade mark registration No 169766 for the figurative mark in black and white "SUNRIDER SUNNY FRESH", for goods in class 32; Hungarian trade mark registration No 144500 for the word mark "SUNNYFRESH", for goods in class 5; Benelux trade mark registration No 574389 for the figurative mark in black and white "SUNRIDER SUNNY FRESH", for goods in classes 5, 29 and 32

Decision of the Opposition Division: Upheld the opposition and rejected the CTM application

Decision of the Board of Appeal: Annulled the contested decision and rejected the opposition

Pleas in law:     

-    Infringement of Article 42(2) and (3) of Council Regulation No 207/2009

-    Infringement of Article 75 second sentence and Article 76(1) second sentence of Council Regulation No 207/2009

-    Infringement of Article 8(1)(b) of Council Regulation No 207/2009.

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