Case T-32/03: Action brought on 3 February 2003 by Leder & Schuh AG against the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM)
Date: 2003-04-26
Institutions: Court of First Instance
Subjects: European Union Intellectual Property Office, action for annulment (EU), footwear industry, leather industry, toy industry, trade mark, trade-mark law

C 101/36

EN

Official Journal of the European Union

26.4.2003

22 September 1999, the Opposition Division held the oppo-
sition to be justified and dismissed the application for certain
goods of class 30.

Action brought on 3 February 2003 by Leder & Schuh
AG against the Office for Harmonisation in the Internal
Market (Trade Marks and Designs) (OHIM)

The applicant argued that it was only in the context of an
enquiry with the Office that it learned that opposition to the
mark had been raised as early as 1998, and that up to that
point it had received no notification that an opposition had
been lodged.

In June 2000, the applicant made an application for restitutio
in integrum in accordance with Article 78 of Regulation (EC)
No 40/94, an application for inspection of the files and an
application for costs. The Opposition Division dismissed the
application for restitutio in integrum by decision of 25 October
2000. By the contested decision, the Board of Appeal dismissed
the applicant’s appeal.

The applicant argues that the contested decision infringed
essential procedural requirements, the Treaty and Regulation
(EC) No 40/94. It argues that it was deprived of the possibility
of defending its right to a fair hearing, as it was unable to
contact the opposing party during the ‘cooling-off’ period in
order to make a settlement, and it was not possible for it either
to submit its reaction to the opposition or to lodge an appeal
within the time-limits against the decision of the Opposition
Division. Accordingly, despite using all the care required in the
circumstances, the applicant was prevented from complying
with Office’s time-limits and is therefore, it submits, entitled to
restitutio in integrum.

The legal argument of the Board of Appeal, that an application
for restitutio in integrum is possible only within a year after
the expiry of the missed time-limit, cannot be accepted. Under
that argument, the possibility of restitution is removed by a
restrictive interpretation of Article 78 of Regulation (EC)
No 94/40 in the very circumstances where protection is most
needed, namely when no written document whatever was
served.

Finally, proof of service merely in the form of a fax confir-
mation which the Office may have can never be sufficient.

( 1) Decision of the First Board of Appeal in Case R 26/2001-1.

(Case T-32/03)

(2003/C 101/67)

(Language of the case: to be determined pursuant to Article 131(2)
of the Rules of Procedure — Language in which the application was
submitted: German)

An action against the Office for Harmonisation in the Internal
Market (Trade Marks and Designs) (OHIM) was brought before
the Court of First Instance of the European Communities on
3 February 2003 by Leder & Schuh AG, Graz (Austria),
represented by W. Kellenter and A. Schaffge,
lawyers.
Schuhpark Fascies GmbH, Warendorf (Germany), was also a
party to the proceedings before the Board of Appeal.

The applicant claims that the Court should:

— annul the decision of the Third Board of Appeal of the
Office for Harmonisation in the Internal Market (Trade
Marks and Designs) of 27 November 2002,
in the
amended version of 9 December 2002, in Case R 494/
1999-3;

— order the defendant to pay the costs.

Pleas in law and main arguments

Applicant
munity trade mark:

for

Com-

Community trade mark
sought:

The Applicant

mark

for products

‘JELLO
The
word
SCHUHPARK’
in
Classes 18, 25 and 28 (particu-
larly leather and imitations of
leather,
those
materials in so far as they fall
within Class 18, clothing, foot-
wear and toys — Application
No 107367

products

of

Proprietor of mark or
sign cited in the oppo-
sition proceedings:

Mark or sign cited in
opposition:

Schuhpark Fascies GmbH

German word mark ‘Schuhpark’
for products in Class 25 (particu-
larly boots, ankle boots, slippers,
shoes and sandals)

26.4.2003

EN

Official Journal of the European Union

C 101/37

Decision of the Oppo-
sition Division:

Dismissal of the applicant’s appli-
cation for ‘clothing, footwear and
toys’. Dismissal of the opposition
as to the remainder.

Decision of the Board of
Appeal:

Dismissal
appeal.

of

the

applicant’s

Pleas in law:

— infringement

of
Article 8(1)(b) of Regulation
(EC) No 40/94 (1);

— absence of risk of confusion;

— little distinctive character of
the opposing trade mark

— lack of similarity of

trade

marks

— products largely dissimilar.

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

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

— the decision of the College of Commissioners of
5 December 2001 improperly terminating the
framework agreement of 20 September 1974, reiter-
ating its approval of ‘operational rules concerning
the levels of concertation, the concertation body and
the relevant procedures’ dated 20 January 2000 and
an alleged ‘agreement’ of 4 April 2001 on the
‘resources to be made available to the central and
the local staff committees and the unions’;

— annul, to the extent necessary,

the abovementioned
decisions of 15 January 2002, 23 January 2002 and
5 December 2001;

— order the defendant to pay damages amounting to

EUR 100 000;

— order the defendant to pay the costs of of the action,
pursuant to Article 69(2) of the Rules of Procedure and
the expenses necessarily incurred for the purpose of the
proceedings,
in particular the travel and subsistence
expenses and the remuneration of agents, advisers or
lawyers, under Article 73(b) of those rules.

Action brought on 4 February 2003 by André Hecq and
Syndicat des Fonctionnaires Internationaux et Européens
(SFIE) against Commission of the European Communities

Pleas in law and main arguments

(Case T-34/03)

(2003/C 101/68)

(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 4 February 2003 by André Hecq,
residing in Mondercange (Luxembourg), and Syndicat des
Fonctionnaires Internationaux et Européens (SFIE), whose
main offices are in Brussels, represented by Lucas Vogel,
lawyer.

The applicant claims that the Court should:

— annul the decsion of the appointing authority of 4 Octo-
ber 2002, notified to the applicant on 9 October 2002
but received by him on 25 October 2002, rejecting the
applicant’s complaint, lodged on 24 April 2002, pursuant
to Article 90(2) of the Staff Regulations in which he
criticised various decisions, in particular:

— two separate decisions notified on 15 January 2002

and 23 January 2002 respectively;

The applicant is an official of the Commission and secretary
general of the ‘Syndicat des Fonctionnaires Internationaux et
Européens’ (SFIE) trade union.

In support of his application,
the applicant alleges, first,
infringement of the framework agreement of 20 September
1974, in particular of the final provisions thereof, and breach
of the general principles of contract law. According to the
applicant, the framework agreement does not provide for
unilateral termination.

The applicant also alleges infringement of Articles 11 and 12
of the framework agreement of 20 September 1974 in that
the abovementioned provisions had not been agreed to by all
the unions.

The applicant alleges next infringement of Article 24a of the
Staff Regulations, Articles 18, 19 and 20 of the framework
agreement of 20 September 1974, manifest error of assessment
and breach of the principle of non-discrimination. According
to the applicant, the criteria relating to representativeness are
erroneous and arbitrary and favour certain unions.