Case T-190/02: Action brought on 17 June 2002 by Anita Jannice Österholm against Commission of the European Communities
Date: 2002-08-24
Institutions: Court of First Instance
Subjects: European Commission, action for annulment (EU), incapacity for work, paid leave, sick leave

24.8.2002

EN

Official Journal of the European Communities

C 202/35

Incorrect application of
Article 8(1)(b) of Regu-
lation No 40/94:

likelihood of confusion exists
because of the undisputed identity
or, at least, similarity of the goods,
the visual and phonetic similarity
of the marks and the inherent
distinctiveness of the mark cited
in opposition.

Action brought on 17 June 2002 by Freiberger Lebensmit-
tel GmbH & Co. Produktions- und Vertriebs KG against
the Office for Harmonisation in the Internal Market
(Trade Marks and Designs)

(Case T-188/02)

(2002/C 202/57)

the

case to be determined in accordance with
(Language of
Article 131(2) of the Rules of Procedure Language in which the
application was made: German)

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
17 June 2002 by Freiberger Lebensmittel GmbH & Co.
Produktions- und Vertriebs KG, of Berlin, Germany, represent-
ed by K.-D. Rathke. Roberto S.A. of Chevilly, France, was an
additional party before the Board of Appeal.

The applicant claims that the Court should:

— annul the decision of the Fourth Board of Appeal of the
Office for Harmonisation in the Internal Market of
28.2.2002 in Case R 1155/2000-4;

— order the opponent to pay the costs.

Pleas in law and main arguments

Mark invoked in the
opposition proceedings:

Decision of
sition division:

the oppo-

Decision of the Board of
Appeal:

Pleas in law relied on:

International mark No 516269
‘Roberto’ for goods in Classes 29
and 30 and the opponent’s trading
name ‘ROBERTO’

Dismissal of the opposition

Annulment of the decision of the
opposition division and remittal
of the application

— Infringement of Rule 16 of
Regulation (EC) No 2868/
95 (1);
— Infringement

of
Article 42(1), in conjunction
with Article 8(2) and (4),
of Regulation (EC) No 40/
94 (2).

(1) Commission Regulation (EC) No 2868/95 of 13 December
1995 implementing Council Regulation (EC) No 40/94 on the
Community trade mark (OJ 1995 L 303, p. 1).

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

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

Action brought on 17 June 2002 by Anita Jannice O¨ ster-
holm against Commission of the European Communities

(Case T-190/02)

(2002/C 202/58)

(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 17 June 2002 by Anita Jannice
O¨ sterholm, residing in Stockholm, represented by Juan Ramon
Iturriagagoitia Bassas, lawyer.

Applicant for the Com-
munity trade mark:

The applicant

The applicant claims that the Court should:

Trade mark applied for:

Word mark ‘Alberto’ for goods in
Classes 29 and 30 — Application
No 26211

— annul

the decision of

the appointing authority of
11 March 2002 replying to complaint No 389/01 lodged
by J. O¨ sterholm;

Proprietor of the trade
invoked in
mark right
the opposition proceed-
ings:

Roberto S.A.

— annul in part the decision of the Directorate General for
Personnel and Administration of the European Com-
mission of 2 July 2001 concerning the computation of
annual leave between 8 and 31 July 2000;

C 202/36

EN

Official Journal of the European Communities

24.8.2002

— convert the period between 8 and 31 July 2000 into sick

leave;

— order the defendant to pay the costs.

Pleas in law and main arguments

When the applicant submitted a medical certificate attesting
that she was unable to work for one month, she pointed out
to the Commission that she wished to use that certificate to
justify one week’s sick leave and asked that the remainder be
regarded as annual leave. The applicant subsequently asked
that the whole of the period be regarded as annual leave and
not set against her annual leave allowance.

In support of her application, the applicant alleges infringe-
ment of Article 59 of the Staff Regulations, erroneous assess-
ment of the facts, misuse of powers, failure to provide reasons
and breach of the rights of the defence as well as breach of the
principles of sound administration and of the duty to have
regard to the welfare of officials.

Decision of the Exam-
iner:

Decision of the Board of
Appeal:

Grounds of claim:

refusal of the application

rejection of the appeal

Violation of article 7(1)
(b) of
Regulation 40/94 (1). The appli-
cant claims the mark is distinctive.

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

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

Action brought on 24 June 2002 by Michel Van Beek
against Commission of the European Communities

(Case T-199/02)

(2002/C 202/60)

(Language of the case: French)

Action brought on 21 June 2002 by G.D. Searle LLC
against the Office for Harmonisation in the Internal
Market

(Case T-192/02)

(2002/C 202/59)

An action against the Commission of the European Communi-
ties was brought before the Court of First Instance of the
European Communities on 24 June 2002 by Michel Van Beek,
residing in Brussels, represented by Albert Coolen, Jean-Noël
Louis and Etienne Marchal, lawyers.

(Language of the case: English)

The applicant claims that the Court should:

An action against the Office for Harmonisation in the Internal
Market was brought before the Court of First Instance of the
European Communities on 21 June 2002 by G.D. Searle LLC,
represented by Graham Farrington, Solicitor,

— annul the decision of the Commission not to promote
him to Grade A 4 in the 2001 promotions procedure;

— order the defendant to pay the costs.

The applicant claims that the Court should:

Pleas in law and main arguments

— annul the decision of the defendant’s Third Board of

Appeal of 10 April 2002;

— order the defendant

the application to its
to remit
Examination Division for re-examination of Community
Trade Mark number 1299833.

Pleas in law and main arguments

The Community trade
mark concerned:

Goods and services:

The figurative mark with trade
mark
number
1299833.

application

Certain goods classified in class 5:
pharmaceuticals in the nature of
anti-inflammatory analgesics.

The applicant in the present action, an official in Grade A 5,
challenges the appointing authority’s refusal to promote him
to Grade A 4 in the 2001 promotions procedure.

In support of his arguments, the applicant alleges:

— breach of the duty to state reasons;

— infringement of Article 45 of the Staff Regulations and
breach of the principle of equal treatment, of the principle
that officials should have reasonable career prospects
and of the principles of good management and sound
administration.