Case T-288/01: Action brought on 23 November 2001 by OPI Products Inc. against the Office for Harmonisation in the Internal Market
Date: 2002-02-02
Institutions: Court of First Instance
Subjects: European Union Intellectual Property Office, action for annulment (EU), cosmetic product, trade mark, trade-mark law

C 31/16

EN

Official Journal of the European Communities

2.2.2002

— failure by the Commission to take into account the fact
that the applicant has fulfilled its obligations under the
contract, whereas Clause 2(c) of the General Terms and
Conditions of the Contract expressly provides that a
contractor is not to be liable for a contractor which does
not fulfil its obligations if it can show that it has not
contributed to such failure to fulfil obligations. In that
the defendant had overrated the obligations
regard,
attaching to the project coordinator;

— the defendant disregarded in the present case the duties
enshrined in Article 1375 of the Italian Civil Code so far
as concerns the principle of good faith and the protection
of legitimate expectations.

More generally, the applicant states that the object of the
contract in question is not for the supply of a piece of
equipment or merely white goods, but of a thermal power
station whose technological characteristics should have proved
to be something new and truly innovative. The applicant
therefore claims that the Commission’s conduct in the per-
formance of the contract should have been quite different to
that adopted, since the defendant was not in actual fact a party
to a synallagmatic contract, but a partner in the full sense of
the word, sharing the contracting parties’ interest in developing
technology within the Member States.

Action brought on 23 November 2001 by OPI Products
Inc. against the Office for Harmonisation in the Internal
Market

(Case T-288/01)

(2002/C 31/30)

(Language of the case: English)

— to order the OHIM to register the trademark ‘Nicole’ for
goods of class 3 including essential oils, cosmetics, hair
lotions, dentifrices and nail polish.

Pleas in law and main arguments

Applicant for the Com-
munity trade mark:

OPI Products Inc.

The Community trade
mark concerned:

The verbal mark ‘Nicole’ for goods
in class 3.

Proprietor of the right to Maxim Marken-Produkte GmbH
the trade mark or sign
asserted by way of oppo-
sition in the opposition
proceedings:

& Co. KG.

Trade mark or
sign
asserted by way of oppo-
sition in the opposition
proceedings:

The national verbal mark ‘Nicole’
for certain goods in class 3

Decision of the Oppo-
sition Division:

Partial rejection of
sition.

the Oppo-

Decision of the Board of
Appeal:

Grounds of claim:

Annulment of the Decision of the
Opposition Division for ‘dentrific-
es’ in class 3 and dismissal of the
further appeal by OPI Products
Inc.

Violation of Article 43(2) of
Council Regulation 40/94 in that
the proof of the use of the mark
asserted by way of opposition was
insufficient. The applicant further
claims a violation of article 8(1)b
of Council Regulation 40/94 since
there is no likelihood of confusion
or similarity of goods.

An action against the Office for Harmonisation in the Internal
Market was brought before the Court of First Instance of the
European Communities on 23 November 2001 by OPI
Products Inc., represented by Mr Emmanuel Cornu and Mr Eric
De Gryse of Braun Bigwood SCRL, Brussels (Belgium).

A further party to the proceedings before the Board of Appeal
was Maxim Marken-Produkte GmbH & Co. KG.

The applicant claims that the Court should:

— annul the decision of the third Board of Appeal in so far
as it denies registration of the contested CTM application
No 737 510 for the word mark ‘Nicole’ for ‘essential oils,
cosmetics, hair lotions; including nail polish’ in class 3;

Removal from the Register of Case T-108/00 (1)

(2002/C 31/31)

(Language of the case: French)

By order of 12 September 2001, the President of the Third
Chamber of the Court of First Instance of the European
Communities has ordered the removal from the Register of
Case T-108/00: Santiago Go´ mez-Reino v Commission of the
European Communities.

(1) OJ C 176 of 24.6.2000.