Case T-294/01: Action brought on 3 December 2001 by Lucía Aparicio Chofré against Commission of the European Communities
Date: 2002-02-16
Institutions: Court of First Instance
Subjects: European Commission, action for annulment (EU), competition (EU), professional experience

16.2.2002

EN

Official Journal of the European Communities

C 44/21

Pleas in law and main arguments

The applicant claims that the Court should:

Applicant for the Com-
munity trade mark:

The applicant

The Community trade Word mark ‘BASS’ — application
No 161331, registration sought
mark concerned:
in respect of goods in Class 25
(footwear and clothing)

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

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

Decision of the Oppo-
sition Division:

Pash Textilvertrieb und Einzelhan-
del GmbH

German mark registered under
the name ‘PASH’, registered in
order
various
articles in international classes 18
and 25

distinguish

to

— annul the decision of 29 January 2001 of the Head of
Unit ADMIN B 3 fixing her place of recruitment at
Brussels and refusing to grant her the daily subsistence
allowance;

— annul the implied rejection of the applicant’s complaint
of 27 April 2001 against the original contested decision;

— order the Commission to pay to the applicant

the
amounts to which she is entitled as a result of having
Rome as her place of recruitment, as set out in the
grounds, and in particular the daily subsistence allowance,
with default interest at 7 % per annum, as from the date
on which those amounts fell due until payment is made
in full;

— order the Commission to pay the costs.

Opposition dismissed

Pleas in law and main arguments

Decision of the Board of
Appeal:

Annulment of the decision of the
Opposition Division

Grounds of claim:

— Inconsistency between the
form of order sought and
the order made, since the
opposition was not brought
against
‘shoes’ men-
tioned in Class 25

the

— Coexistence of

the marks
‘BASS’ and ‘PASH’ on the
German market

— Misapplication

of

Ar-
ticle 8(1)(b) of Regulation
(EC) No 40/94 (likelihood of
confusion).

The applicant was seconded to the Commission in Brussels for
three years before being engaged as a member of the auxiliary
staff. For that purpose, the applicant’s place of recruitment was
set as Rome. The applicant was subsequently engaged as a
member of the temporary staff for an indeterminate period,
with Brussels as the place of recruitment. That decision is
contested by the applicant.

In support of her application, the applicant pleads an error in
law as regards the concept of ‘residence’ and a manifest error
of assessment. According to the applicant, her residence in
Brussels was provisional during the entire period of her
engagement with the Commission in Brussels. In her sub-
mission, the facts demonstrate that her habitual residence
remained Rome. Moreover, the applicant claims that the
Commission illegally withdrew a decision giving rise to
entitlement. Initially, the place of recruitment of the applicant
was Rome when she took up her duties as a member of
the temporary staff. That decision was withdrawn by the
subsequent contested decision not to grant the applicant
entitlement to the daily subsistence allowance.

Action brought on 3 December 2001 by Donatella Ineich-
en against Commission of the European Communities

(Case T-293/01)

(2002/C 44/39)

(Language of the case: French)

An action against the Commission of the European Communi-
ties was brought before the Court of First Instance of the
European Communities on 3 December 2001 by Donatella
Ineichen, residing in Brussels, represented by Marc-Albert
Lucas, lawyer.

Action brought on 3 December 2001 by Lucı´a Aparicio
Chofré against Commission of the European Communities

(Case T-294/01)

(2002/C 44/40)

(Language of the case: Spanish)

An action against the Commission of the European Communi-
ties was brought before the Court of First Instance of the

C 44/22

EN

Official Journal of the European Communities

16.2.2002

European Communities on 3 December 2001 by Lucı´a
Aparicio Chofré, residing in Valencia (Spain), represented by
Gloria Ballester Can˜ ada, lawyer.

The applicant claims that the Court should:

— annul the decision of the selection board in general
competition COM/B/01 in the event that it does not mark
the tests sat by the applicant on 6 July 2001.

Pleas in law and main arguments

The applicant claims that
the contested decision, which
excludes her from the competition on the ground that
she does not meet the conditions relating to professional
experience required under Point III.B of the competition notice,
not only adversely affects her but, moreover, is unlawful and
contrary to the wording of the competition notice (1), according
to which candidates must have acquired, by the deadline for
the submission of applications, at least 4 years’ professional
experience. The applicant argues that, in accordance with the
criteria laid down in the notice for the calculation of the period
of professional experience, she has shown that she has acquired
7 years and 8 months of experience, so that the board should
have allowed her to take part in the competition.

(1) Published in OJ 2001 C 24A.

The applicant claims that the Court should:

— annul the decision adopted on 19 September 2001 by
the Third Board of Appeal in Case No R 826/2000-3;

— order the defendant to proceed with the registration
proceedings in respect of Community trade mark appli-
cation No 607895, in particular to re-open the opposition
proceedings pending under opposition No B 190746
and, following the conclusion of those opposition pro-
ceedings, in so far as Community trade mark application
No 607895 is not found to be excluded from registration
in accordance with the first sentence of Article 43(5) of
the Community trade mark regulation (1), order the
defendant to register the trade mark applied for pursuant
to Article 45 of that regulation;

— order the defendant to pay the costs.

Pleas in law and main arguments

The trade mark applied
for:

the verbal mark ‘OLDENBURGER’
— Application No 607895

Goods or services:

goods in Classes 29, 30 and 32
(including milk and dairy prod-
ucts)

Decision
before
Appeal:

contested
the Board of

refusal of
examiner

registration by the

Decision of the Board of
Appeal:

rejection of the appeal

Action brought on 3 December 2001 by Nordmilch eG
against the Office for Harmonisation in the Internal
Market (Trade Marks and Designs)

Grounds of claim:

(Case T-295/01)

(2002/C 44/41)

(Language of the case: German)

— error of

law in the appli-
cation of Article 7(1)(c) and
Article 7(2) of Regulation
(EC) No 40/94;

— misinterpretation of Article
12(b) of Regulation (EC)
No 40/94;

— error of law by the defendant
in failing to call upon the
to give a dis-
applicant
claimer.

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
3 December 2001 by Nordmilch eG, of Zeven (Germany),
represented by C. Spintig, lawyer.

(1) Council Regulation (EC) No 40/94 of 20 December 1993 on the

Community trade mark (OJ 1994 L 11, p. 1).