Case T-319/02: Action brought on 11 October 2002 by H.O. Sports Inc. against the Office for Harmonisation in the Internal Market (Trade Marks and Designs)
Date: 2003-01-11
Institutions: Court of First Instance
Subjects: European Union Intellectual Property Office, action for annulment (EU), clothing, sports equipment, trade-mark law

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;

11.1.2003

EN

Official Journal of the European Communities

C 7/21

— ‘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
in international
for the practice of wakeboard’
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.

Pleas in law and main arguments

The pleas in law and main arguments advanced are identical
to those put forward in Case T-318/02 (H.O. Sports Company,
Inc. / OHIM).

Action brought on 22 October 2002 by Paul Vannieuwen-
huyze-Morin against European Parliament and Council of
the European Union

(Case T-321/02)

(2003/C 7/42)

(Language of the case: French)

An action against the European Parliament and the Council of
the European Union was brought before the Court of First
Instance of the European Communities on 22 October 2002
by Paul Vannieuwenhuyze-Morin, residing in Grigny (France),
represented by Guy Dupaigne, lawyer.

The applicant claims that the Court should:

— annul Article 13(1) and (2) of Directive 2002/58/EC of
the European Parliament and of the Council of 12 July
2002 concerning the processing of personal data and the
protection of privacy in the electronic communications
sector (Directive on privacy and electronic communi-
cations), published in the Official Journal on 31 July
2002, and the words ‘either without the consent of the

subscribers concerned or’ and ‘the choice between these
options to be determined by national
in
Article 13(3);

legislation’

— make an appropriate order as to costs.

Pleas in law and main arguments

The applicant, a frequent user of direct mailing over the
internet and founder of the internet site Internet-libre.net,
seeks the annulment of the abovementioned provisions of
Directive 2002/58/EC of the European Parliament and of the
Council of 12 July 2002 concerning the processing of
personal data and the protection of privacy in the electronic
communications sector (Directive on privacy and electronic
communications) (OJ 2002 L 201, p. 37).

In support of its arguments, the applicant alleges lack of legal
basis to the contested act insofar as its adoption was not
necessary for the single market.

Furthermore, the directive in question fails to observe the right
to freedom of expression mentioned in Articles 5 of the
Declaration of Fundamental Rights and Freedoms, 11 of the
Charter of Fundamental Rights of the European Union and 10
of the European Convention for the Protection of Human
Rights and Fundamental Freedom and the principle of free
trade recognised by all the Member States and that of free
competition, enshrined in particular in Articles 3 and 4 and
Title VI of the Treaty.

Action brought on 14 October 2002 by Monique Breton
against Court of Justice of the European Communities

(Case T-323/02)

(2003/C 7/43)

(Language of the case: French)

Justice of

An action against the Court of
the European
Communities was brought before the Court of First Instance
of
the European Communities on 14 October 2002 by
Monique Breton, residing in Howald (Luxembourg), represent-
ed by Albert Coolen, Jean-Noël Louis and Étienne Marchal,
avocats.