Judgment — ECLI:EU:T:2006:400
Date: 2006-12-14
Language of the case: Italian
Court formation: Third Chamber
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Trade marks;Intellectual, industrial and commercial property
Concepts: Figurative marks applied for;Concept and criteria for assessment;Appeals before the Boards of Appeal
Procedure: Action for annulment - unfounded;Action for annulment - successful
Origin: Italy

Notice for the OJ Action brought on 24 September 2004 by Salvatore Gagliardi against the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (O.H.I.M.) (Case T-392/04) Language in which the application was submitted: Italian 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 24 September 2004 by Salvatore Gagliardi, proprietor of the one-man business of the same name, represented by Alex Schmitt, Prof. Paolo Biavati and Sandro Corona, lawyers. The company Norma Lebensmittelfilaialbetrieb GmbH & Co. KG was also a party to the proceedings before the Board of Appeal. The applicant claims that the Court should: - annul the decision inter partes of the Fourth Appeal Board of the O.H.I.M. (proceedings R 0154/2002-4), and pursuant to Article 87 of the Rules of Procedure, order the unsuccessful parties (the O.H.I.M. in so far as it incurs liability, for example, for being at fault on account of its having gone beyond the limits of the action brought before it) to pay the costs. Pleas in law and main arguments: Applicant for Community trade mark:Applicant Community trade mark sought:Figurative mark "MANU" - Application for registration No 1.021.690, claim in respect of several products in Classes 18, 24 and 25 Proprietor of mark or sign cited in the opposition proceedings:Norma Lebensmittelfilialbetrieb GmbH & Co. KG Mark or sign cited in opposition.German word mark "MANOU", in respect of products in Class 25 (clothing, footwear, headgear) Decision of the Opposition Division:Opposition dismissed Decision of the Board of Appeal:Appeal granted and application for registration rejected Pleas in law:Misapplication of Article 8(1)(b) of Regulation (EC) No 40/94 on the Community trade mark. The applicant also claims that the contested decision is flawed because it goes beyond the limits of the action brought before the Board in rejecting the application for registration of the trade mark, in respect of Classes 18 and 24 also, which unarguably were never the subject-matter of the opposition, in addition to other products in Class 25 other than items of clothing, despite the fact that only those last formed the basis of the opposition. ____________