Sunrider Corp v OHIM (Vitakraft-Werke Wührmann & Sohn and Friesland Brands BV, opponents at OHIM) (see IPKat's Translation Watch blog of yesterday's date) was an appeal by Sunrider from the OHIM Board of Appeal decisions in two opposition cases, R 386/2000-2 of 17 January 2002 and R 34/2000-1 of 21 February 2002. wholly about costs awards, Art 81 CTMR and Rule 51 of the Implementing Regulations (IR). The competing marks were (in the first case) Sunrider's VITATASTE and the opponents' VITAKRAFT and VITA and (in the second case) METABALANCE 44 and BALANCE and BALANS, respectively.

In the first opposition Sunrider limited its goods, whereupon the opponent withdrew the opposition while requesting a decision on costs. In the second, the parties terminated the opposition by mutual agreement as to limitation of goods but not as to costs and Sunrider requested a decision. The Opposition Division decided against Sunrider on costs. On appeal the Board of Appeal annulled the decision and ordered each party to bear its own costs of the opposition and of the appeal. Essentially the same things happened in the 2nd opposition. In this case the Opposition Division also stated that each party should bear half the cost of the opposition fee, but the Board of Appeal again annulled the decision and ordered each party to bear its own costs. However, it ordered a reimbursement to Sunrider of the appeal fee, considering that the unexplained ("non-motivated") decision of the Opposition Division was a substantial procedural violation.

The Court of First Instance considered that Art. 81(3) was a special case ("lex specialis") of the general legal provision in Art. 81(4) and that, therefore, the Boards of Appeal in question were right in rejecting the appeal to them. And in response to the appellant's plea of inequity, because its claims were smaller in extent than the opponent's claims, the CFI also rejected the appeal and the notion that the Board of Appeal exceeded its discretion, pointing out among other things that the discretion was broad and also that the fee payable when filing an opposition does not depend on the extent of the opposition.

Sunrider also appealed against the non-reimbursement of the appeal fee in the first opposition. It alleged infringement of R. 51 IR and Art. 73 (which requires that reasoned decisions be given). The CFI also rejected these pleas, mainly because there is no obligation on a Board of Appeal to consider non-pleaded matters, which was the case here. In other words there is no duty to explain in a decision the reasons for omitting to do something which it was not obliged to consider. Sunrider's appeal was rejected in its entirety and it was ordered to pay the costs of the appeal before the CFI.

They say that curiosity killed the cat. Well, until he knew what the Sunrider case was about, the IPKat was really curious to find out. But now, well, he sort of wishes he hadn't ...

The IPKat is endebted to polyglot polymath Tibor Gold (of London-based patent and trade mark practice Kilburn & Strode) for this information.

THE VITATASTE CASE: WHAT THE CFI SAID THE VITATASTE CASE: WHAT THE CFI SAID Reviewed by Verónica Rodríguez Arguijo on Friday, April 30, 2004 Rating: 5

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