Case T-420/03: Action brought on 17 December 2003 by El Corte Inglés against the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM)
Date: 2004-02-21
Institutions: Court of First Instance
Subjects: EU trade mark, European Union Intellectual Property Office, action for annulment (EU), trade-mark law

C 47/34

EN

Official Journal of the European Union

21.2.2004

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

Mark or sign cited in
opposition:

Laboratoires Goëmar

— refuse to allow registration of the Community trade mark
No 1.160.050 ‘BOOMERANG TV’ in Class 41, and

The national and international
word marks ‘Laboratoires de la
mer’ for goods in classes 3, 5,
29 and 31 (in addition to other
things, cosmetics of a marine
products base)

— order the other party or parties opposing this action to

pay the costs.

Decision of the Oppo-
sition Division:

The opposition was upheld and
the application for registration
rejected in its entirety

Decision of the Board of
Appeal:

Dismissal of the appeal brought
by La Mer Technology

Pleas in law and main arguments

Applicant
munity trade mark:

for

Com-

Pleas in law:

Violation of Article 43(2) and (3)
of Council regulation 40/94 (1)
and violation of Article 8(1) (b) of
Council Regulation 40/94.

Community trade mark
sought:

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

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

José Matías Abril Sánchez and
Pedro Ricote Saugar

—

Figurative mark ‘BOOMERANG
TV’, with a semi-ellipse superim-
Application
posed
No 1.160.050 in respect of ser-
vices
included in Classes 38
and 41, although during the
opposition proceedings the party
applying for registration reduced
the ambit of protection for the
mark, excluding Class 38.

Action brought on 17 December 2003 by El Corte Inglés
against the Office for Harmonisation in the Internal
Market (Trade Marks and Designs) (OHIM)

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

Applicant.

Mark or sign cited in
opposition.

(Case T-420/03)

(2004/C 47/66)

(Language of the case: Spanish)

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
17 December 2003 by El Corte Inglés S.A., established in
Madrid, represented by Juan Luis Rivas Zurdo and Emilio
López Leiva, lawyers.

The applicant claims that the Court should:

— annul the OHIM (Second Board of Appeal)’s decision of
1 October 2003 given in Case R088/2003-2, inasmuch
as, by dismissing the appeal brought by the present
applicant, it gives grounds for a future grant of Com-
munity trade mark No 1.160.050 BOOMERANG TV in
Class 41;

Decision of the Oppo-
sition Division:

Opposition rejected.

trade

Spanish figurative marks Nos
2035514, 2163613, 2163616,
2035507, 2035508, 2035505,
2035509, 2035510, 2035511,
2035512 and 2035513 (the word
‘BOOMERANG’ framed in a dia-
mond), 1236024, 1236025 and
1282250, Irish mark No 153228,
Greek mark No 109387 and
Community
mark
No 448514 (the word ‘BOOMER-
ANG’ under a square containing
the letter B next to a boomerang),
Spanish word mark ‘BOOMER-
ANG’ No 456466, Spanish figu-
rative marks ‘BOOMERANG La
base del deporte’ (No 2227731,
and
2227732 and 2227734)
mark
English
No
square
enclosing the letter B next to a
boomerang), in respect of prod-
ucts in Classes 18, 25, 38 and 41.

1494568

figurative

(small

21.2.2004

EN

Official Journal of the European Union

C 47/35

Decision of the Board of
Appeal:

Pleas in law:

Action dismissed.

— order the Commission to pay all costs and expenses in

these proceedings.

Infringement of Article 8(1)(b),
(2)(c) and (5) of Regulation (EC)
No 40/94.

Pleas in law and main arguments

Action brought on 23 December 2003 by Enviro Tech
Europe, Ltd., and Enviro Tech International Inc. against
the Commission of the European Communities

(Case T-422/03)

(2004/C 47/67)

(Language of the case: English)

An action against the Commission of the European Communi-
ties was brought before the Court of First Instance of the
European Communities on 23 December 2003 by Enviro Tech
Europe Ltd., Kingston-upon-Thames, United Kingdom and
Enviro tech International, Inc., Chicago, USA, represented by
Mr C. Mereu and Mr K. Van Maldegem, lawyers.

The applicant claims that the Court should:

— annul Commission Decisions D(2003) 430307 and

D(2003) 430309 of 4 November 2003;

— declare the Commission liable for damages suffered by
applicants to date and pending these proceedings as a
result of the Commission’s unlawful conduct, including
but not
limited to its denial of applicant’s request
and related adoption of the contested decision, and to
compensate applicants for such damage in the provisional
amount of EUR 350 000;

— declare the Commission liable for imminent losses and
damages foreseeable with sufficient certainty, even if such
losses and damages cannot be precisely assessed;

the Commission’s
The applicants seek the annulment of
to classify
decisions rejecting the applicants’ request not
n-propyl bromide as a highly flammable substance (risk
phrase R11) and reproductive toxicant category 2 (risk
phrase R60) , but instead to classify it as a category 3/R62
substance for reproductive toxicity and R18 substance for
the applicants requested
flammability.
the Commission to exclude n-propyl bromide from the
29th Adaptation to Technical Progress of Directive 67/548/
EEC (1) until a proper and complete assessment of all the
scientific data had been made by the Commission.

In the alternative,

In support of their application, the applicants claim that the
Commission has violated the provision of Directive 67/
548/EEC concerning the applicable testing methods and
classification criteria for chemical substances. According to the
applicant, the Commission has made a manifest error of
assessment and an incorrect application of the testing methods
for physico-chemical properties set forth in annex V, point A.9
of Directive 67/548/EEC, the classification criteria for toxico-
logical properties set forth in annex VI, point 4.2.3 of Directive
67/548/EEC and the criterion of normal handling or use set
forth in annex VI, point 1.1 of Directive 67/548/EEC.

The applicants also claim that the Commission has violated
the applicants’ legitimate expectations that the Commission
would assess the data submitted by the applicants in accord-
ance with their obligations under Directive 67/548/EEC,
diligently, impartially and by relevance to the relevant criteria
of Directive 67/548/EEC.

The applicants invoke furthermore a violation of Article 95(3)
EC Treaty. According to the applicants, the Commission failed
to consider and assess all the scientific data available as well as
new developments based on scientific facts.

The applicants state that the contested decisions are based on
the precautionary principle. According to the applicants, this
principle only applies to risk assessment and cannot be used
in hazard assessments. Also, even if the principle should apply
in this case, this would only be possible in the case of scientific
uncertainty.