Action brought on 13 February 2009 — Rintisch v OHIM — Bariatrix Europe (PROTI SNACK)

(Case T-62/09)

2009/C 102/34

Language in which the application was lodged: English

Parties

Applicant: 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: Bariatrix Europe Inc. SAS (Guilherand Granges, France)

Form of order sought

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 “PROTI SNACK”, for goods in classes 5, 29, 30 and 32 — application No 4 992 145

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

Mark or sign cited: German trade mark registration No 39 702 429 of the word mark “PROTI” for goods in classes 29 and 32; German trade mark registration No 39 608 644 of the figurative mark “PROTIPOWER” for goods in classes 29 and 32; German trade mark registration No 39 549 559 of the word mark “PROTIPLUS” for goods in classes 29 and 32; German trade mark registration No 39 629 195 of the trade word “PROTITOP” for goods in classes 29, 30 and 32

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 provide an assessment on the merits of the opposition; Infringement of Article 74(2) of Council Regulation 40/94 as the Board of Appeal refused to exercise its discretion or at least failed to state how it exercised such discretion; Misuse of power as the Board of Appeal failed to take into account documents and evidence submitted by the applicant.