Case T-365/02: Action brought on 5 December 2002 by Muswellbrook Limited against the Office for Harmonisation in the Internal Market (OHIM)
Date: 2003-02-22
Institutions: Court of First Instance
Subjects: EU trade mark, European Union Intellectual Property Office, action for annulment (EU), clothing, trade-mark law

22.2.2003

EN

Official Journal of the European Union

C 44/35

of
the European Communities on 5 December 2002 by
Muswellbrook Limited, established in Dublin (Ireland), rep-
resented by J. Casulá Oliver, lawyer.

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

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) thereof, the decision of the
First Board of Appeal of the OHIM of 30 September
2002 in case No R 73/2000-1, 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 277889 is
appropriate, to which end the Court’s judgment should
declare that Community trade mark No 277889 is
refused, or, in the alternative, refer the case back to the
First Board of Appeal of the OHIM;

— 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

(Case T-365/02)

(2003/C 44/67)

(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
of the European Communities on 5 December 2002 by
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) thereof, the decision of the
First Board of Appeal of the OHIM of 30 September
2002 in case No R 833/1999-1, 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 277731 is
appropriate, to which end the Court’s judgment should
declare that Community trade mark No 277731 is
refused, or, in the alternative, refer the case back to the
First Board of Appeal of the OHIM;

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).

— 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.

The Community trade mark in respect of which registration is
sought is the mixed mark ‘NIKE’ with ‘swoosh’ graphic —
application No 277889 in respect of goods in Class 25
‘clothing, footwear and headgear’.

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).

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.