Case T-371/02: Action brought on 10 December 2002 by Bernard Barbé against the European Parliament
Date: 2003-02-22
Institutions: Court of First Instance
Subjects: European Parliament, European official, action for annulment (EU), institutional cooperation, seizure of goods

C 44/36

EN

Official Journal of the European Union

22.2.2003

The Community trade mark in respect of which registration is
sought
the word mark ‘NIKE F.I.T.’ — application
No 277731 in respect of goods in Class 25 ‘clothing, footwear
and headgear’.

is

— order the defendant and, where appropriate, the inter-
vener to pay all the costs of the proceedings and those
incurred at the administrative stages of the opposition
and appeal proceedings.

Pleas in law and main arguments

The applicant seeking the Community trade mark, the pro-
prietor of the mark cited in opposition, the tenor of the
decisions of the Opposition Division and the Board of Appeal
and the pleas in law and main arguments are the same as those
in Case T-362/02 (MUSWELLBROOK LIMITED v OHIM).

The Community trade mark in respect of which registration is
sought is the mixed mark ‘TRIAX NIKE SERIES’ with graphic
— application No 252411 in respect of goods in Class 25
‘clothing, footwear and headgear’.

Action brought on 5 December 2002 by Muswellbrook
Limited against the Office for Harmonisation in the
Internal Market (OHIM)

(Case T-366/02)

(2003/C 44/68)

(Language of the case: Spanish)

An action against the Office for Harmonisation in the Internal
Market (OHIM) was brought before the Court of First Instance
the European Communities on 5 December 2002 by
of
Muswellbrook Limited, established in Dublin (Ireland), rep-
resented by J. Casulá Oliver, lawyer.

The applicant claims that the Court should:

— declare incompatible with Regulation (EC) No 40/94 on
the Community trade mark, in particular Article 15(2)(a)
and/or Article 42(2) and (3) and/or Article 8(1)(b) thereof,
the decision of the First Board of Appeal of the OHIM of
30 September 2002 in case No R 880/1999-1, inasmuch
as it declares that the opponent has failed to prove
genuine use in the Community of the Spanish trade mark
No 88222 to distinguish ready-to-wear and other items
of clothing in Class 25 during the five years preceding
the publication of the application for a Community trade
mark;

— annul that decision in its entirety;

— agree to vary that decision so as to declare that an
assessment of and a ruling on the merits of the opposition
to registration of Community trade mark No 252411 is
appropriate, to which end the Court’s judgment should
declare that Community trade mark No 252411 is
refused, or, in the alternative, refer the case back to the
First Board of Appeal of the OHIM;

Action brought on 10 December 2002 by Bernard Barbé
against the European Parliament

(Case T-371/02)

(2003/C 44/69)

(Language of the Case: French)

An action against the European Parliament was brought before
the Court of First Instance of the European Communities on
10 December 2002 by Bernard Barbé, resident at Luxembourg,
lawyer, with an address for
represented by Alain Loraing,
service in Luxembourg.

The applicant claims that the Court should:

— rule that the Parliament wrongly has not passed on to
him the deductions from Mrs Boez’s salary which fell due
up until 11 November 1998;

— order payment to him of the deductions made in respect
of the months from March 1998 to November 1998
inclusive;

— order the defendant to pay the costs.

22.2.2003

EN

Official Journal of the European Union

C 44/37

Pleas in law and main arguments

the appointing
The applicant challenges the decision of
authority not to grant his request
that the judgment of
the Tribunal de Paix de Luxembourg (Magistrates’ Court,
Luxembourg) of 26 November 1998 be correctly implemented
and that, consequently, the termination of attachment which
was ordered, with effect from 11 November 1998, in respect
of sums deducted by way of attachment from the salary of an
official of the defendant institution take effect on that date and
not in March 1998.

In support of his claims, the applicant pleads:

— the principle under which the institutions are bound by a
duty to cooperate in good faith with national institutions;

— that the attachment procedure is entirely legal as regards

Community law.

Action brought on 17 December 2002 by Alessandro
Cavallaro against the Commission of the European Com-
munities

(Case T-375/02)

(2003/C 44/70)

(Language of the case: Italian)

An action against the Commission of the European Communi-
ties was brought before the Court of First Instance of the
European Communities on 17 December 2002 by Alessandro
Cavallaro, represented by C. Forte, lawyer.

The applicant claims that the Court should:

— annul

the decision of

the Appointing Authority of
11 September 2002 to give him insufficient marks
for written test (e) of the Open Competition for the
recruitment of administrators (Grade A 7/A 6) COM/A/
6/01 and, in consequence, not to admit him to the oral
tests in that competition;

— annul the subsequent stages of that competition, in so far

as is necessary to restore the applicant’s rights;

— order the defendant to pay the costs.

for the recruitment of administrators (Grade A 7/A 6) in the
field of External Relations and Management of Aid to Third
Countries, selecting ‘External Relations’, challenges the decision
of the Commission, the examining body, to assess his test (e)
— written test — at one point below that necessary (19/40)
for admission to the oral test.

In support of his claims the applicant alleges:

— Misuse of powers, insufficient statement of reasons and
breach of the rights of the defence as regards the refusal
to give him information as to the marking criteria let
alone the marking procedure and the marks of the
individual examiners.

— Breach of Article 3 of the Staff Regulations, insufficient
statement of reasons and breach of the rights of the
defence as regards the refusal to provide information as
to the linguistic knowledge of the third examiner.

— Breach of the principle of equal treatment in the test and
of the principle of sound administration. In that respect
it is stated that the material distributed to the candidates
in Italian was not prepared with sufficient care. It should
also be noted that there was inconsistency in the grounds
relating to the interpretation of
the ‘instructions to
candidates’.

— Clear error of fact in the marking of the first answer in

written test (e) of the competition.

— Misrepresentation of the truth, illogicality and contradic-
tory grounds as regards the marking of the second answer
in written test (e) of the competition.

Action brought on 9 December 2002 by ‘O’ against the
Commission of the European Communities

(Case T-376/02)

(2003/C 44/71)

(Language of the case: French)

Pleas in law and main arguments

The applicant in this case, who had applied to take Open
Competition COM/A/6/01 for the constitution of a reserve list

An action against the Commission of the European Communi-
ties was brought before the Court of First Instance of the
European Communities on 9 December 2002 by ‘O’, represent-
ed by Jean Van Rossum, Lawyer, with an address for service in
Luxembourg.