Case T-112/03: Action brought on 27 March 2003 by L'Oréal S.A. 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

C 135/34

EN

Official Journal of the European Union

7.6.2003

Pleas in law and main arguments

In 1999 the World Trade Organisation found that the EC
regime for the importation of bananas, as amended by Council
Regulation No 1637/98 (1) and Commission Regulation
No 2362/98 (2), was WTO-incompatible. Following that ruling,
the United States, with WTO authorisation, adopted certain
retaliatory measures against EC products. These measures
included a 100 % duty on bath preparations imported to the
US from the EC. The first applicant is a Scottish company
which produces, amongst other things, bath products, a large
proportion of which it used to export to the United States. The
other two applicants are officers of
that company. The
applicants allege that as a result of the retaliatory measures,
the first applicant’s sales to the US decreased substantially
causing it to suffer serious material losses and subjecting the
other two applicants to stress and anxiety which caused them
non-material damage. The applicants claim compensation
under Articles 235 and 288 EC. In support of their application
the
they submit
defendant violated the fundamental policy of the Community
to make the ‘banana regime’ WTO compatible as well as a
clear mandate from the European Council to that effect.
Moreover, Regulation 2362/98 allegedly violates the freedom
to pursue a trade or business, the principle of proportionality,
the principle of non-discrimination and finally the principle of
good faith in international law and the legitimate expectations
traders can derive from that. According to the applicants the
breach of law is manifest and serious and the rules of law
violated qualify as rules for the protection of the individual.
Further, there exists a causal link between the unlawfulness of
Regulation 2362/98 and the damage allegedly suffered by the
applicants, entitling the latter to compensation.

that, by adopting Regulation 2362/98,

( 1) OJ L 210, 28.7.1998, p. 28.
( 2) OJ L 293, 31.10.1998, p. 32.

Action brought on 27 March 2003 by L’Oréal S.A. against
the Office for Harmonisation in the Internal Market
(Trade Marks and Designs) (OHIM)

(Case T-112/03)

(2003/C 135/55)

the Court of First Instance of the European Communities on
27 March 2003 by L’Oréal S.A., Paris, France, represented by
Mr X. Buffet Delmas d’Autane, lawyer.

A further party to the proceedings before the Board of Appeal
was Revlon (Suisse) S.A.

The applicant claims that the Court should:

— annul the decision of the Fourth Board of Appeal of
the OHIM of 15 January 2003 regarding the appeal
No R0396/2001-4 relating to the opposition proceedings
No B 215048 (Community application No 1011576);

— order that the costs of the action and the appeal are to be

borne by the OHIM.

Pleas in law and main arguments

Applicant for the Com-
munity trade mark:

L’Oréal S.A.

Community trade mark
sought:

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

Mark or sign cited in
opposition:

The word mark ‘FLEXI AIR’ for
certain goods in class 3 (Sham-
poos; gels, mousses and balms;
essential oils;
(Application
...)
No 1011576)

Revlon (Suisse) S.A.

Several national word marks
‘FLEX’ for certain goods in class 3
and 34 (soaps, essential oils,
Shampoo, ...)

Decision of the Oppo-
sition Division:

Rejection of the community trade
mark application.

Decision of the Board of
Appeal:

Dismissal of the appeal brought
by L’Oréal S.A.

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

Pleas in law:

An action against the Office for Harmonisation in the Internal
Market (Trade Marks and Designs) (OHIM) was brought before

— Breach of article 43(2) of
Council regulation No 40/
94 (1) and rule 22(1) Com-
mission
Regulation
No 2868/95 (2) in that there
is, according to the appli-
cant, no time limit for the
applicant to request evidence
of use.

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.