Case T-360/03: Action brought on 30 October 2003 by Frischpack GmbH & Co KG against the Office for Harmonisation in the Internal Market (Trade Marks and Designs)
Date: 2003-12-13
Institutions: Court of First Instance
Subjects: EU trade mark, European Union Intellectual Property Office, action for annulment (EU), cheese, trade-mark law

C 304/32

EN

Official Journal of the European Union

13.12.2003

The applicant claims that the Court should:

Pleas in law and main arguments

— set aside the decision of the First Board of Appeal of

OHIM of 9 July 2003 in Case R 0576/2002-1;

Applicant
munity trade mark:

for

Com-

— refuse to register as a Community mark No 488.940

DAVID LLOYD in Class 25, and

Community trade mark
sought:

— order the other party or parties to pay the costs.

Pleas in law and main arguments

Barilla Alimentare S.p.A.

Figurative mark including the
words
‘SELEZIONE ORO’ and
‘BARILLA’ — Application No
289.405 for products in Class
30 (pasta, flour and preparations
made from cereals, bread, pastry
and confectionery, yeast, baking-
powder, sauces).

The pleas in law and main arguments are those already put
forward in Case T-341/03 El Corte Inglés v OHIM.

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

The applicant.

The Community trade mark which is the subject of the dispute
is the mark ‘DAVID LLOYD’ (Application No 488.940, for
goods in Classes 3, 5, 25, 28, 36, 41 and 42). The applicant,
the marks cited in the opposition proceedings, the proprietor
and the decisions of the Opposition Division and the Board of
Appeal are identical to those referred to in that case.

Mark or sign cited in Word marks ‘ORO’ (Italian trade
mark No 307376 and inter-
opposition:
national trade mark No 435773)
and ‘ORO SAIWA’ (Italian trade
mark No 332.864) for products
in Class 30.

Decision of the Oppo-
sition Division:

Opposition refused.

Decision of the Board of
Appeal:

Appeal dismissed.

Action brought on 2 October 2003 by SAIWA S.p.A.
against the Office for Harmonisation in the Internal
Market (Trade Marks and Designs) (OHIM)

Pleas in law:

Incorrect application of Article
8(1)(b) of Regulation (EC) No 40/
94 (likelihood of confusion).

(Case T-344/03)

(2003/C 304/59)

(Language of the case: Italian)

Action brought on 30 October 2003 by Frischpack GmbH
& Co KG against the Office for Harmonisation in the
Internal Market (Trade Marks and Designs)

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
2 October 2003 by SAIWA S.p.A., represented by Giuseppe
Sena, Paola Tarchini, Jean-Pierre Karsenty and Martine Karsen-
ty-Ricard, lawyers. Barilla Alimentare S.p.A. was also a party
to the proceedings before the Board of Appeal.

The applicant claims that the Court should:

(Case T-360/03)

(2003/C 304/60)

(Language of the case: German)

— annul the decision of the Fourth Board of Appeal of
OHIM of 18 July 2003 in Case R 480/2002-4; order that
registration be refused in respect of Barilla’s Community
trade mark application No 289405; order the defendant
to pay all the costs.

An action against the Office for Harmonisation in the Internal
Market (Trade Marks and Designs) was brought before the
Court of First Instance of the European Communities on
30 October 2003 by Frischpack GmbH & Co KG, Mailling
(Germany), represented by P. Bornemann, lawyer.

13.12.2003

EN

Official Journal of the European Union

C 304/33

The applicant claims that the Court should:

on 31 October 2003 by Antonio Milano, represented and
defended by Stefano Scarano.

— alter the decision in Appeal R 236/2003-2, and annul it
in part, namely in respect of the goods ‘cheese slices in
large packs, not intended for the final consumer’;

— order the defendant to pay the costs of the proceedings.

Pleas in law and main arguments

The trade mark applied
for:

Three-dimensional mark in the
form of a cheese box — Appli-
cation No 2 631 745.

Goods or services con-
cerned:

Goods in Class 29 (foodstuffs in
sliced form, in particular slices of
cheese).

Decision
before
Appeal:

contested
the Board of

Refusal of
examiner.

registration by the

Decision of the Board of
Appeal:

Appeal dismissed.

The applicant claims that the Court should:

— annul the act of the European Commission — European
Communities Personnel Selection Office — communi-
cated by memorandum of 24 March 2003 and notified
to the applicant on 31 March 2003, in which the selection
board decided that the applicant’s application was inad-
missible on the basis of the request for review made by
Mr Milano, annul the decision of 10 February 2003 of
the Commission in which the selection board refused the
applicant admission to the oral test in open competition
COM/A/4/02 ‘Administrators’, and annul the decision of
17 July 2003 of the appointing authority in which the
complaint submitted by Mr Milano under Article 90(2)
of the Staff Regulations and lodged at DG ADMIN on
24 April 2003 with number R/187/03 was rejected;

— full compensation in damages for economic and moral

loss

Grounds of action:

— Article 7(1)(b) of Regulation
(EC) No 40/94 has been
infringed.

— It is not to be denied that the
mark has the distinctiveness
necessary for registration.

— A need to preserve avail-
ability is not apparent.

— recovery of costs

Pleas and main arguments

This action is brought against the decision of the selection
board for open competition COM/A/4/02 ‘Administrators’,
through qualifications and an oral
test, with a view to
constituting a reserve list for the recruitment of a head of
representation in grade A3 in Rome, excluding the applicant
test in the above-mentioned
from admission to the oral
competition.

In particular, the ground that the applicant does not have
thorough knowledge of Community institutions, programmes
and policies is contested.

Action brought on 31 October 2003 by Antonio Milano
against the Commission of the European Communities

(Case T-362/03)

(2003/C 304/61)

(Language of the case: Italian)

In support of his arguments, the applicant claims that this
ground is unfounded, unjustified, illogical and inconsistent.

An action against the European Commission was brought
before the Court of First Instance of the European Communities