Case T-318/02: Action brought on 11 October 2002 by H.O. Sports Company, Inc. against the Office for Harmonisation in the Internal Market (Trade Marks and Designs)
Date: 2003-01-11
Institutions: Court of First Instance
Subjects: EU trade mark, European Union Intellectual Property Office, action for annulment (EU), clothing, sports equipment

11.1.2003

EN

Official Journal of the European Communities

C 7/19

COURT OF FIRST INSTANCE

ORDER OF THE COURT OF FIRST INSTANCE

of 25 September 2002

in Case T-178/01: Di Leonardo Adriano SRL v Com-
mission of the European Communities (1)

(Bananas — Regulation No 896/2001 — Action for annul-
ment — Person individually concerned — Admissibility)

European Communities (Agents: L. Visaggio and A. Dal Ferro)
— application for annulment of Commission Regulation (EC)
No 896/2001 of 7 may 2001 laying down detailed rules for
applying Council Regulation (EEC) No 404/93 as regards the
arrangements for importing bananas into the Community (OJ
2001 L 126, p. 19) — the Court of First Instance (Fifth
Chamber), composed of J.D. Cooke, President, and R. García-
Valdecasas and P. Lindh, Judges; H. Jung, Registrar, made an
order on 25 September 2002, in which it:

(2003/C 7/38)

(Language of the case: Italian)

1. Held the action to be inadmissible.

2. Ordered the applicant to bear the whole of the costs.

In Case T-178/01: Di Leonardo Adriano SRL, represented by
A. Bozzi, C. Gatti and B. Telchini, lawyers, against Commission
of the European Communities (Agents: L. Visaggio and A. Dal
Ferro) — application for annulment of Commission Regulation
(EC) No 896/2001 of 7 may 2001 laying down detailed rules
for applying Council Regulation (EEC) No 404/93 as regards
the arrangements for importing bananas into the Community
(OJ 2001 L 126, p. 19) — the Court of First Instance (Fifth
Chamber), composed of J.D. Cooke, President, and R. García-
Valdecasas and P. Lindh, Judges; H. Jung, Registrar, made an
order on 25 September 2002, in which it:

1. Held the action to be inadmissible;

2. Ordered the applicant to bear the whole of the costs.

( 1) OJ C 289 of 13.10.01.

(1) OJ C 289 of 13.10.01.

Action brought on 11 October 2002 by H.O. Sports
Company, Inc. against the Office for Harmonisation in
the Internal Market (Trade Marks and Designs)

(Case T-318/02)

(2003/C 7/40)

(Language of the case: English)

ORDER OF THE COURT OF FIRST INSTANCE

of 25 September 2002

in Case T-179/01: Dilexport SRL v Commission of the
European Communities (1)

(Bananas — Regulation No 896/2001 — Action for annul-
ment — Person individually concerned — Admissibility)

(2003/C 7/39)

(Language of the case: 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
11 October 2002 by H.O. Sports Company, Inc., Redmond,
Washington, U.S.A., represented by Mr Fabrizio Jacobacci,
lawyer.

The applicant claims that the Court should:

— amend the decision of 17 July 2002 (File No. R 140/
2002-3) of the Third Board of Appeal of the Office for
(Trade Marks
Harmonisation in the Internal Market
and Designs) and allow the Community Trade Mark
Application to proceed to registration in connection with
the following goods:

In Case T-179/01: Dilexport SRL, represented by A. Bozzi,
C. Gatti and B. Telchini, lawyers, against Commission of the

— ‘backpacks; travel bags; duffel bags for practice of

wakeboard’ in international class 18;

C 7/20

EN

Official Journal of the European Communities

11.1.2003

— ‘sportswear, jackets; T-shirts, sweatshirts, polo shirts,
volley shorts, training shorts and short pants; swim-
ming suits; hats; wet suits; wet suit boots; dry suits;
water ski boots; water ski vests, water ski gloves;
spray legs, all meant to be used for the practice of
wakeboard’ in international class 25;

Grounds of claim:

— ‘water sport tow ropes, water sport tow handles;
water sport tow floats;
inflatable tubes for rec-
reational use in water; towable water toys designed
to carry a rider; wake boards; wake board bindings;
wake board fins; water skis; trick water skis; jump
skis; water ski bindings; adjustable ski fins; water ski
boat tow harnesses; water ski gloves; knee boards;
water sport boards; water sport gear bags; water ski,
wakeboard and knee board bags; water sport goods;
dampers for use with water skis; wake boards to
limit vibration and adjust flex, all meant to be used
for the practice of wakeboard’
in international
class 28.

— order the defendant to pay the costs, fees and disburse-
ments of this case and of the previous proceedings and
appeals before OHIM Examination Division and the Third
Board of Appeal respectively.

The decision is contradictory in
that although the Board of Appeal
recognises that all the different
observations and documents filed
by the H.O. Sports, Inc. in their
entirety constantly refer to the
particular market of wakeboard,
it sustains that acquired distinc-
tiveness under Article 7 (3) of
Regulation No. 40/94 (1) has been
established for certain goods only.

(1) Council Regulation (EC) No 40/94 of 20.12.1993 on the Com-

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

Action brought on 11 October 2002 by H.O. Sports Inc.
against the Office for Harmonisation in the Internal
Market (Trade Marks and Designs)

(Case T-319/02)

(2003/C 7/41)

(Language of the case: English)

Pleas in law and main arguments

The trade mark con-
cerned:

The word mark ‘HYPERLITE’ —
application No 997122

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
11 October 2002 by H.O. Sports Inc., Redmond, Washington,
U.S.A., represented by Mr Fabrizio Jacobacci, lawyer.

Goods or service con-
cerned:

Goods in classes 18, 25 and 28

The applicant claims that the Court should:

Decision
before
Appeal:

contested
the Board of

Refusal of
examiner

registration by the

Decision of the Board of
Appeal:

Annulment of the decision of the
examiner in so far as it rejects
registration of the application for
‘wakeboards, wakeboard bind-
ings; wakeboard fins; wakeboard
bags; dampers for use with wake
boards to limit vibration and
adjust flex’, all in class 28, and
dismissal of the appeal for the
remainder.

— amend the decision of 17 July 2002 (File No. R 140/
2002-3) of the Third Board of Appeal of the Office for
Harmonisation in the Internal Market
(Trade Marks
and Designs) and allow the Community Trade Mark
Application to proceed to registration in connection with
the following goods:

— ‘backpacks; travel bags; duffel bags for practice of

wakeboard’ in international class 18;

— ‘sportswear, jackets; T-shirts, sweatshirts, polo shirts,
volley shorts, training shorts and short pants; swim-
ming suits; hats; wet suits; wet suit boots; dry suits;
water ski boots; water ski vests, water ski gloves;
spray legs, all meant to be used for the practice of
wakeboard’ in international class 25;