Notice for the OJ
Action brought on 15 May 2002 by Sunrider Corporation against the Office for Harmonisation in the Internal Market (Trade Marks and Designs)
(Case T-156/02)
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
An action against the Office for Harmonisation in the Internal Market (Trade Marks and Designs) was brought before the Court of First Instance of the European Communities on 15 May 2002 by Sunrider Corporation, Torrance (USA), represented by A. Kockläuner, lawyer.
Frieslands Brands B.V., Leeuwarden (the Netherlands) was an additional party to the proceedings before the Board of Appeal.
The applicant claims that the Court should:
(partially annul Decision R 34/2000-1 of the First Board of Appeal of 21 February 2002 to the extent that the applicant was ordered to bear half of the opposition fees as well as its owns costs in the opposition and appeal proceedings;
(order the Office to pay the costs.
Pleas in law and main arguments
The applicant filed an application for registration of the word mark "METABALANCE 44" in respect of goods in Classes 5 and 29 at the Office for Harmonisation in the Internal Market (application no 155747). Frieslands Brands B.V. opposed that application. The opposition was based on various national and international marks including, inter alia, "BALANCE", "BALANS" and "FRIESISCHE FLAGGE BALANCE" in respect of, inter alia, goods in Classes 5 and 29.
As a result of a private settlement with the opponent, the applicant limited the category of goods by removing some of the goods claimed in Class 29. The opponent later withdrew its opposition but sought a decision on costs.
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.
The applicant is appealing against the decision of the Board of Appeal and claims that the more specific Article 81(4) of Council Regulation (EC) No 40/94
1 , not Article 81(3), is applicable in the present case. The defendant thus failed to take into account the fundamental assessment criteria and to observe the principle of proportionality.
Moreover, in the applicant's opinion, the defendant also wrongly applied the assessment criteria in Article 81(3) in conjunction with Article 81(2) of Council Regulation (EC) No 40/94. In the applicant's view, that provision requires that a decision on costs should take into account general considerations of equity and fairness.
____________1 - Council Regulation (EC) No 40/94 of 20 December 1993 on the Community trade mark (OJ 1994 L 11, p. 1).