Case T-188/03: Action brought on 27 May 2003 by Joëlle Hivonnet against Council of the European Union
Date: 2003-08-02
Institutions: Court of First Instance
Subjects: Council of the European Union, action for annulment (EU), education grant, equal treatment

2.8.2003

EN

Official Journal of the European Union

C 184/45

Mark or sign cited in oppo-
sition:

Figurative mark
(mark
with
no 1975912,
Class 36)

for

‘GESINMAR’
priority
in

goods

Pleas in law and main arguments

Applicant
trade mark:

for Community

The Applicant

Decision of the Opposition
Division:

Upholding of the opposition for
all services in Class 36

Community
sought:

trade mark

The trade name ‘ENZO FUSCO’
— Application for
registration
No 726735, requested for pro-
ducts in Classes 3, 9, 18, 24
and 25 (products which are tra-
ditionally the subject of
trade
mark registration by so-called
creators of taste and fashion)

Decision of
Appeal:

Pleas in law:

the Board of

Dismissal of the appeal

Misapplication of Article 8(1)(b)
of Regulation (EC) No 40/94
(likelihood of confusion)

Action brought on 27 May 2003 by Vincenzo Fusco
the Office for Harmonisation in the Internal
against
Market (Trade Marks and Designs) (OHIM)

(Case T-185/03)

(2003/C 184/99)

(Language of the case: Italian)

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
27 May 2003 by Vincenzo Fusco, represented by B. Saguatti,
lawyers.

The other party to the proceedings before the Board of Appeal
was Antonio Fusco International S.A.

The applicant claims:

— as a principal claim,

that

the
contested decisions of the Board of Appeal holding that
the marks Antonio Fusco and Enzo Fusco were liable to
be confused with each other;

the Court should annul

Proprietor of mark or sign
cited in the opposition pro-
ceedings:

Antonio
Fusco
S.A., Luxembourg

International

Mark or sign cited in op-
position:

‘ANTONIO
Community mark
FUSCO’
(Registration
No 654059) for products sub-
stantially
those
to
identical
claimed by the Applicant

Decision of the Opposition
Division:

Opposition upheld and applica-
tion for registration dismissed

Decision of
Appeal:

Pleas in law:

the Board of

Dismissal of the appeal.

Misapplication of Article 8(1)(b)
of Regulation (EC) No 40/94
(Risk of confusion).

Action brought on 27 May 2003 by Joëlle Hivonnet
against Council of the European Union

(Case T-188/03)

(2003/C 184/100)

(Language of the case: French)

— in the alternative, should the Court hold that the marks
Antonio Fusco and Enzo Fusco are liable to confusion,
that the Court should specify the precise territorial scope
of the decision;

— as a principal claim, a declaration that, although the
opposition is based on an earlier Community trade
mark, the transformation procedure is not precluded save
by reference to the territory in respect of which the
existence of a risk of confusion may be recognised;
— that the opponent should be ordered to pay the costs, or,
in the alternative, given the delicacy and complexity of
the questions under consideration, that a composition of
costs should be established.

the Council of

An action against
the European Union was
brought before the Court of First Instance of the European
Communities on 27 May 2003 by Joëlle Hivonnet, domiciled
in New York (United States), represented by Georges Vander-
sanden and Laure Levi, lawyers.

The applicant claims that the Court should:
— annul the decision of the appointing authority of 23 July
2002 rejecting the applicant's request for the grant of an
education allowance for her daughter Eponine for the
school years 1999-2000 and 2000-2001,
and only
granting an education allowance for
the school year
2001-2002 on an exceptional basis on the ground of
educational continuity;

C 184/46

EN

Official Journal of the European Union

2.8.2003

— annul

the decision of

appointing authority of
the
17 February 2003, notified on 24 February 2003,
dismissing the applicant's complaint of 9 October 2002;

— restore all the applicant's pecuniary rights;

— order the defendant to pay default interest on sums owed
to the applicant as education allowance for the school
years 1999-2000 and 2000-2001 and 2001-2002, that
interest to run for the first two school years from 17 June
2002 until the sums are paid in full; for the school year
to run from 17 June 2002 to
2001-2002 interest
13 August 2002 for
the first and second terms and
from 8 March 2002 to 7 May 2002 for the third term.
The rate of default interest to apply must be calculated on
the basis of the rate set by the European Central Bank for
capital refinancing operations in force during the period
concerned, increased by two percentage points;

— order the defendant to pay one euro as compensation for
the non-material damage suffered by the applicant;

— order the defendant to pay all the costs.

Pleas in law and main arguments

The applicant's daughter was born in 1996 and began to
attend the French Lycée in Brussels in September 1999.

first, on
In support of her application the applicant relies,
breach of Article 3 of Annex VII
to the Staff Regulations,
breach of Article 15 of Annex X to the Staff Regulations and
the Council Decision of 19 December 1998 laying down
general implementing provisions in respect of Annex X to the
Staff Regulations. She also complains that the Council took a
decision on grounds that are wrong in fact and law. The
applicant claims that despite the clear terms of the national
rules applicable to schooling and the replies given by the
French Government on those rules,
the Council considered
that her daughter's schooling was not primary education.

The applicant further alleges that the principle of non-discri-
mination was infringed in that children registered at a French
educational establishment are not treated in the same way as
children registered in a Luxembourg, British or Dutch educa-
tional establishment.

that

Lastly the applicant alleges
to state
to a hearing have been
reasons and the fundamental right
infringed. The applicant states that the Council did not take
account of the opinion of the French authorities and did not
explain why they did not do so.

the requirement

Action brought on 2 June 2003 by ASM Brescia S.p.A.
against Commission of the European Communities

(Case T-189/03)

(2003/C 184/101)

(Language of the case: Italian)

An action against the Commission of the European Commu-
nities was brought before the Court of First Instance of the
European Communities on 2 June 2003 by ASM Brescia S.p.
A., represented by Fausto Capelli, Francesca Vitale and Massi-
miliano Valcada, lawyers.

The applicant claims that the Court should:

— in substance, annul Article 2 of Commission Decision
2003/193/EC of 5 June 2002, published in OJ 2003
L 77, by which the European Commission declared
incompatible with the common market
the measures
adopted by the Italian Republic under Article 2(70) of
Law No 549 of 28 December 1995 and Article 66(14) of
Decree Law No 331 of 30 August 1993, converted into
Law No 427 of 29 October 1993 granting exemption
from income tax to joint stock companies with majority
public shareholdings
set up in accordance with Law
No 142 of 8 June 1990;

— in substance,

in the alternative, annul Article 3 of
Commission Decision 2003/193/EC of 5 June 2002,
published in OJ 2003 L 11, by which the European
to recover
Commission ordered the
granted to, inter alios, the applicant;

Italian Republic

— order the European Commission to pay the costs.

Pleas in law and main arguments

The applicant in the present action, the former azienda muni-
cipalizzata (municipal undertaking) of Brescia is contesting the
decision of the Commission of 5 June 2002 (1),
in which it
considered State aid the three-year exemption (1997 to 1999)
from income tax, provided for by Italian legislation for former
municipal undertakings which became
companies with a
majority public shareholding and accordingly ordered recovery
of the appropriate amounts.

In support of its claims, the applicant alleges the following:

— in the contested decision, the defendant appears to have
conducted its analysis while completely disregarding the
special nature of the public utilities sector, namely that it
ensures public provision of certain minimum services
deemed to be of fundamental importance.