Case T-342/03: Action brought on 3 October 2003 by El Corte Inglés S.A. against the Office for Harmonisation in the Internal Market (OHIM)
Date: 2003-12-13
Institutions: Court of First Instance
Subjects: EU trade mark, European Union Intellectual Property Office, action for annulment (EU), trade-mark law

13.12.2003

EN

Official Journal of the European Union

C 304/31

Action brought on 15 September 2003 by ATOMIC
Austria GmbH against the Office for Harmonisation in
the Internal Market (Trade marks and Designs) (OHIM)

Decision of the Board of
Appeal:

Dismissal of the applicant’s appeal

Pleas in law:

(Case T-318/03)

(2003/C 304/57)

(Language of the case: 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
15 September 2003 by ATOMIC Austria GmbH, represented
by G. Kucsko, lawyer. Fabricas Agrupadas de Muñecas de Onil
S.A., Alicante (Spain) was also a party to the proceedings
before the Board of Appeal.

The applicant claims that the Court should:

— annul the Decision of the Second Board of Appeal of the
Office for Harmonisation in the Internal Market of 9 July
2003 relating to opposition procedure No B 442 873;

— order the Office for Harmonisation in the Internal Mark

to reimburse the costs.

Pleas in law and main arguments

— the decision is

incorrect
because the Board of Appeal
did not
the
Opposition Division for fail-
ing to take account of all the
evidence adduced;

find against

— in

the

alternative,

the
decision is incorrect because
the Board failed to find that
the Opposition Division’s
failure to draw the appli-
cant’s attention to the miss-
ing documents contrary to
Rule 20(2) of Regulation
(EC) No 2868/95 constituted
a procedural irregularity;

— in

the
alternative,
the
incorrect
was
decision
because the Board of Appeal
failed to hold that the Oppo-
sition Division’s failure to
point out the altered practice
was an infringement of the
principle of the protection of
legitimate expectations.

Applicant
munity trade mark:

for

Com-

Fabricas Agrupadas de Muñecas
de Onil S.A.

Action brought on 3 October 2003 by El Corte Inglés S.A.
against the Office for Harmonisation in the Internal
Market (OHIM)

Community trade mark Word mark ‘ATOMIC BLITZ’ for
goods
in Class 28 (including
sought:
games and playthings; gymnastic
and sporting articles not included
in other classes)

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

Mark or sign cited in
opposition:

The applicant

Austrian word mark ‘ATOMIC’
for inter alia goods in Class 28
(including sporting and gymnastic
articles and games)

Decision of the Oppo-
sition Division:

Rejection of the opposition

(Case T-342/03)

(2003/C 304/58)

(Language of the case: Spanish)

An action against the Office for Harmonisation in the Internal
Market (OHIM) was brought before the Court of First Instance
of the European Communities on 3 October 2003 by El Corte
Inglés, with its registered office in Madrid, represented by Juan
Luis Rivas Zurdo and Emilio López Leiva, lawyers.

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.