JUDGMENT OF THE GENERAL COURT (Seventh Chamber)

16 December 2011 (*)

(Community trade mark – Opposition proceedings – Application for Community word mark PROTI SNACK – Earlier national word and figurative marks PROTIPLUS, PROTI and PROTIPOWER – Late submission of documents – Discretion granted by Article 74(2) of Regulation (EC) No 40/94 (now Article 76(2) of Regulation (EC) No 207/2009) – Concept of a provision to the contrary – Rule 20(1) of Regulation (EC) No 2868/95 – Rule 50(1) of Regulation No 2868/95)

In Case T‑62/09,

Bernhard Rintisch, residing in Bottrop (Germany), represented by A. Dreyer, lawyer,

applicant,

v

Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM), represented by G. Schneider, acting as Agent,

defendant,

the other party to the proceedings before the Board of Appeal of OHIM being

Bariatrix Europe Inc. SAS, established in Guilherand Granges (France),

ACTION brought against the decision of the Fourth Board of Appeal of OHIM of 15 December 2008 (Case R 740/2008-4) relating to opposition proceedings between Bernhard Rintisch and Bariatrix Europe Inc. SAS,

THE GENERAL COURT (Seventh Chamber),

composed of A. Dittrich, President, I. Wiszniewska-Białecka and M. Kancheva (Rapporteur), Judges,

Registrar: E. Coulon,

having regard to the application lodged at the Court Registry on 13 February 2009,

having regard to the response lodged at the Court Registry on 10 June 2009,

having regard to the fact that no application for a hearing was submitted by the parties within the period of one month from notification of closure of the written procedure, and having therefore decided, acting upon a report of the Judge‑Rapporteur, to give a ruling without an oral procedure pursuant to Article 135a of the Rules of Procedure of the Court,

gives the following

Judgment

 Background to the dispute

1        On 17 March 2006, Bariatrix Europe Inc. SAS filed an application for registration of a Community trade mark with the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) pursuant to Council Regulation (EC) No 40/94 of 20 December 1993 on the Community trade mark (OJ 1994 L 11, p. 1), as amended (replaced by Council Regulation (EC) No 207/2009 of 26 February 2009 on the Community trade mark (OJ 2009 L 78, p. 1)).

2        The mark for which registration was sought is the word sign PROTI SNACK.

3        The goods in respect of which registration was sought are in, inter alia, Classes 5, 29 and 32 of the Nice Agreement concerning the International Classification of Goods and Services for the Purposes of the Registration of Marks of 15 June 1957, as revised and amended, and correspond, inter alia, for each of those classes, to the following description:

–        Class 5: ‘Pharmaceutical and veterinary preparations or food for babies, with a base of or otherwise, enriched or otherwise, with proteins, vitamins, minerals and/or essential fatty acids; dietetic substances, beverages and foodstuffs for medical purposes; pharmaceutical or nutritional food supplements for medical purposes, with or without vitamins, enriched or otherwise with proteins; diet and preparations for medical purposes; protein food supplements and hyperproteinic preparations; medical preparations for slimming purposes; food, dietetic or nutritional preparations or supplements, not for medical use, with a base [of] eggs, milk and milk products, dietetic food preparations, nutritional supplements and meal replacements, not for medical use, with a cereal base’;

–        Class 29: ‘Protein-based meal substitutes; protein for human consumption; milk-based beverages; yoghurt’;

–        Class 32: ‘Sports drinks, hyperproteinic drinks, high energy drinks, preparations rich in proteins, vitamins, minerals or essential fatty acids, for making beverages; dietetic beverages not adapted for medical purposes; preparations for making beverages’.

4        The Community trade mark application was published in Community Trade Marks Bulletin No 51/2006 of 18 December 2006.

5        On 9 March 2007, Mr Bernhard Rintisch, the applicant, filed a notice of opposition under Article 42 of Regulation No 40/94 (now Article 41 of Regulation No 207/2009) against registration of the mark applied for in respect of the goods referred to in paragraph 3 above.

6        The opposition was based, inter alia, on the following earlier rights:

–        German word mark PROTIPLUS, filed on 4 December 1995 and registered on 20 May 1996, under number 395 49 559, in respect of goods in Classes 29 and 32;

–        German word mark PROTI, filed on 22 January 1997 and registered on 3 March 1997, under number 397 02 429, in respect of goods in Classes 29 and 32;

–        German figurative mark represented below, filed on 24 February 1996 and registered on 5 March 1997, under number 396 08 644, in respect of goods in Classes 29 and 32: