Case T-418/03: Action brought on 22 December 2003 by La Mer Technology, Inc. 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), cosmetic product, trade-mark law

21.2.2004

EN

Official Journal of the European Union

C 47/33

The applicants claim that the Court of First Instance should:

— Declare that the Community has incurred non-contrac-
tual liability by making a deduction from the percentage
of the Total Allowable Catch of anchovies to which Spain
and the fleet authorised to fish for anchovies in ICES
zone VIII are entitled in the years 1996 to 2001, by
transferring Portugal’s quota in ICES zone IX for it to be
fished by France in ICES zone VIII;

— Compel the Community, represented by the Council, to
compensate the applicants for the real and certain harm
suffered as a result of the acts of the Council, comprising
both consequential damage and loss of profits, in the
terms set out in the present application and its annexes;

— Order the Community, represented by the Council, to
pay all the costs incurred by the applicants in the context
of the present proceedings.

Pleas in law and main arguments

The purpose of the present action is to seek compensation for
the damage suffered by the applicants as a result of the removal
between 1996 and 2001 of part of the Total Allowable Catch
(TAC) of anchovies to which Spain is entitled in ICES
(International Council for the Exploration of the Sea) zone VIII,
following the authorisation granted by the Council of the
European Union for the transfer of Portugal’s quota in ICES
zone IX for it to be fished by France in zone ICES VIII.

In support of their claims, the applicants submit that the
alleged illegality fulfils all the requirements laid down by the
case-law to give rise to non-contractual liability on the part of
the Community.

As regards the condition concerning a sufficiently serious
breach of a superior rule of law, they refer to contravention of
the principles of relative stability, legal certainty and protection
of legitimate expectations.

the permitted anchovy catches in ICES zone VIII initially
assigned to them, contravenes both the principle of relative
stability and the Act of Accession (Article 161(1)(f)). Thus, the
Council also acted in breach of the principle of legal certainty,
infringing upon the legitimate expectations of the economic
agents involved.

The applicants also allege that the Council has misused its
powers.

Action brought on 22 December 2003 by La Mer Tech-
nology, Inc. against the Office for Harmonisation in the
Internal Market (Trade Marks and Designs) (OHIM)

(Case T-418/03)

(2004/C 47/65)

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

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
22 December 2003 by La Mer Technology, Inc., New York,
USA, represented by Dr V. v. Bomhard, Dr A. Renck and Dr
A. Pohlmann, lawyers. Laboratoires Goëmar was also a party
to the proceedings before the Board of Appeal.

The applicant claims that the Court should:

1.

annul the Decision of the second Board of Appeal of the
office for Harmonisation in the Internal market (Trade
Marks and Designs) of 23 October 2003 in case R 814/
2000-2;

2.

order that the costs of the proceedings be borne by the
defendant.

They state, in particular, that the principle of relative stability
serves to guarantee compliance with the quota allocated to
Spain in the Act of Accession, according to which Spain is
entitled to 90 percent and France to 10 percent of anchovy
catches in ICES zone VIII. Accordingly, the quota swaps
provided for in Article 8 (4) (ii) of Regulation No 3760/92 and
Article 9 (1) thereof must be carried out without changing the
overall balance of percentages laid down in the Act of
Accession. Consequently, the contested authorisation of swaps,
the result of which is to deprive Spain and the Spanish fleet of

Pleas in law and main arguments

Applicant for the Com-
munity trade mark:

The Community trade
mark sought:

La Mer Technology, Inc.

The word mark ‘La Mer’ for goods
in class 3 (in addition to other
things,
the care of
for
human skin and the human body;
perfumery, essential oils, cos-
metics, hair lotions)

soaps

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