Action brought on 17 March 2009 - Rintisch v OHIM - Valfeuri Pates Alimentaires (PROTIVITAL)

(Case T-109/09)

Language in which the application was lodged: English

Parties

Applicants: Bernhard Rintisch (Bottrop, Germany) (represented by: A. Dreyer, lawyer)

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

Other party to the proceedings before the Board of Appeal: Valfeuri Pates Alimentaires SA (Wittenheim, France)

Form of order sought

Annul the decision of the Fourth Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 21 January 2009 in case R 1660/2007-4; and

Order OHIM to pay the costs

Pleas in law and main arguments

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

Community trade mark concerned: The word mark "PROTIVITAL", for goods in classes 5, 29 and 30 - application No 4 843 331

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

Mark or sign cited: German trade mark registration of the word mark "PROTI" for goods in classes 29 and 32; German trade mark registration of the figurative mark "PROTIPOWER" for goods in classes 5, 29 and 32; German trade mark registration of the word mark "PROTIPLUS" for goods in classes 5, 29 and 32; German trade mark registration of the trade word "PROTITOP" for goods in classes 5, 29, 30 and 32; Community trade mark registration of the word mark "PROTI" for goods in classes 5 and 29

Decision of the Opposition Division: Rejected the opposition

Decision of the Board of Appeal: Dismissed the appeal

Pleas in law: Infringement of Article 8(1)(b) of Council Regulation 40/94 as the Board of Appeal failed to assess the opposition on its merits; Infringement of Article 74(2) of Council Regulation 40/94 as the Board of Appeal failed to exercise discretion or at least failed to state reasons how it exercised discretion; Misuse of power as the Board of Appeal erred by not taking into account documents and evidence submitted by the applicant.

____________