Case T-115/03: Action brought on 7 April 2003 by Samar SpA against the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM)
Date: 2003-06-07
Institutions: Court of First Instance
Subjects: EU trade mark, European Union Intellectual Property Office, action for annulment (EU), trade-mark law

7.6.2003

EN

Official Journal of the European Union

C 135/35

between

— Violation of the principle of
continuity
the
Opposition Division and the
Board of Appeal in that the
Board of Appeal refused to
examine
applicant’s
the
request for proof of use.

— Breach of Article 8(1) of
Council Regulation 40/94 in
that there is no likelihood of
confusion.

— Breach of Article 8(2) (a) (ii)
of Council Regulation 40/94
in that the Board of Appeal
failed to assess whether the
national
trade mark could
validly be invoked to oppose
the Community trade mark
application
the
national legislation.

under

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

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

( 2) Commission Regulation (EC) No 2868/95 of 13 December
1995 implementing Council Regulation (EC) No 40/94 on the
Community trade mark (OJ L 303, p. 1).

The applicant claims that the Court should:

— annul the decisions of 30 April 2002 of the Director
of the ‘Administration and Personnel Management for
Luxembourg and Ispra’ Directorate in DG ADMIN refus-
ing the applicant the installation allowance and daily
subsistence allowance during his secondment to Athens,
and the installation allowance upon his return to Luxem-
bourg, and that limiting the transferable part of his salary
to 35 % of his net emoluments from his place of
secondment to his place of work and habitual residence;

— order the defendant to pay the costs.

Pleas in law and main arguments

The applicant, who was stationed in Luxembourg, was second-
ed in the interests of the service to the Greek Ministry of
Health in Athens. By its contested decisions, the defendant
refused him the installation allowance and daily subsistence
allowance and limited the part of his salary he was allowed to
transfer to Luxembourg to 35 %.

With regard to the refusal of the installation allowance and the
daily subsistence allowance, the applicant claims infringement
of Articles 5 and 10 of Annex VII to the Staff Regulations in
support of his arguments. With regard to the 35 % cap on the
amount of his salary that he was allowed to transfer to
Luxembourg, he claims infringement of Article 38(d) of the
Staff Regulations and of Article 17 of Annex VII to the Staff
Regulations.

Action brought on 31 March 2003 by Georgios Gouvras
against Commission of the European Communities

(Case T-113/03)

(2003/C 135/56)

(Language of the case: French)

Action brought on 7 April 2003 by Samar SpA against
the Office for Harmonisation in the Internal Market
(Trade Marks and Designs) (OHIM)

(Case T-115/03)

(2003/C 135/57)

(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 31 March 2003 by Georgios
Gouvras, resident in Bereldange, Luxembourg, represented by
Albert Coolen, Jean-Noël Louis, Etienne Marchal and Sébastien
Orlandi, lawyers, with an address for service in Luxembourg.

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
7 April 2003 by Samar SpA, represented by Alessandro Ruo,
lawyer.

C 135/36

EN

Official Journal of the European Union

7.6.2003

The other party in the proceedings before the Board of Appeal
was Grotto spa.

Action brought on 7 April 2003 by Oreste Montalto
against the Council of the European Union

The applicant claims that the Court should:

— annul the contested decision which forms the subject-
matter of these proceedings; in the alternative, declare
there is no likelihood of confusion between the signs in
question so far as concerns all the goods requested except
for jeans, in respect of which there is a likelihood of
confusion or, at least, so far as concerns all those goods
which the Court does not consider likely to be confused
and, accordingly annul the contested decision so far as
such goods are concerned;

— order the defendant to pay the costs.

Pleas in law and main arguments

Applicant
munity trade mark:

for

Com-

The applicant

Community trade mark Word mark ‘GAS STATION’ —
application No 712647,
regis-
sought:
tration sought in respect of goods
in Class 25 (‘Clothing, footwear,
headgear’)

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

Mark or sign cited in
opposition:

Grotto S.p.A.

Italian trade mark ‘BLUE JEANS
GAS’
registered in respect of
goods in Class 25 (‘trousers, jack-
ets, jeans, shirts, skirts, heavy jack-
ets, sports jerseys, sweaters, tail-
ored jackets,
socks,
stockings,
footwear, boots, slippers’)

Decision of the Oppo-
sition Division:

Registration refused

Decision of the Board of
Appeal:

Appeal dismissed

Pleas in law:

Misapplication of Article 8(1)(b)
of Regulation (EC) No 40/94 inas-
much as the trade marks in ques-
tion are not
to be considered
similar for the purposes of that
provision

(Case T-116/03)

(2003/C 135/58)

(Language of the case: French)

An action against the Council of the European Union was
brought before the Court of First Instance of the European
Communities on 7 April 2003 by Oreste Montalto, resident
in Alicante (Spain), represented by Georges Vandersanden,
avocat.

The applicant claims that the Court should:

— annul the decision of the Council, taken by its President
on 23 May 2002, appointing an additional Chairman of
a Board of Appeal, also President of the Appeals Depart-
ment of the OHIM, and thereby rejecting the applicant’s
candidature for the same post;

— award the applicant compensation for the material and
loss suffered, provisionally assessed at

non-material
EUR 20 000;

— order the defendant to pay the costs.

Pleas in law and main arguments

The applicant is an official of the Office for Harmonisation in
the Internal Market (OHIM). In response to a vacancy notice,
he submitted his candidature for the post of Chairman of a
Board of Appeal of
the OHIM. Another candidate was
appointed to that post by the contested decision and the
applicant’s candidature was accordingly rejected. In support of
his claims, the applicant makes two pleas in law. The first plea
alleges infringement of the selection procedure. In that respect,
the applicant argues that the selection procedure was entrusted
to a private company and that both the competent authorities
within the OHIM and the defendant had in reality abdicated
their power of supervision by simply ratifying the conclusions
to which that company came. He also argues that the contested
decision should have been taken by the President of the OHIM
and not by the defendant. The second plea alleges manifest
errors of assessment and an infringement of the principle of