Case T-7/04: Action brought on 7 January 2004 by Shaker s.a.s. di Lucia Laudato & C. against the Office for Harmonisation in the Internal Market (Trade Marks and Designs)
Date: 2004-03-06
Institutions: Court of First Instance
Subjects: EU trade mark, European Union Intellectual Property Office, action for annulment (EU), fruit product, trade-mark law

6.3.2004

EN

Official Journal of the European Union

C 59/35

Action brought on 2 January 2004 by Carlo Scano against
the Commission of the European Communities

Action brought on 7 January 2004 by Shaker s.a.s. di
Lucia Laudato & C. against the Office for Harmonisation
in the Internal Market (Trade Marks and Designs)

(Case T-5/04)

(2004/C 59/55)

(Language of the case: French)

An action against the Commission of the European Communi-
ties was brought before the Court of First Instance of the
European Communities on 2 January 2004 by Carlo Scano,
resident in Brussels (Belgium), represented by Marc-Albert
Lucas, lawyer.

The applicant claims that the Court should:

— annul the decision of the selection board in Competition
COM/PA/02 determining the applicant’s results in the
pre-selection tests;

— annul the list of successful candidates in Subject Area
No 3 of the competition and any decision adopted on
that basis;

— order the Commission to pay to him compensation for
non-material damage to him in a sum to be fixed by the
Court;

— order the Commission to pay the costs.

Pleas in law and main arguments

The applicant, who lodged his candidature for Competition
COM/PA/02 for promotion from category B to category A,
choosing the subject area ‘Human Resources Management/
Administrative Organisation and Coordination’, seeks firstly
the annulment of the selection board’s decision determining
his results in the pre-selection test and on that basis refusing
to admit him to the oral test.

In support of his claims the applicant pleads a breach of the
principles of good administration, of the duty to have regard
for the interests of officials, and of the principles of equal
treatment of candidates throughout
the competition and
of objectivity when choosing between them. He claims,
furthermore, that there was a manifest error of assessment in
that the sixth multiple choice question in the Italian version of
the verbal and numerical test contained differences, caused by
translation errors,
from the English and French versions.
Consequently the applicant, who had opted for the Italian
version, logically chose an answer considered incorrect and
did not choose that considered correct, unlike candidates who
had opted for the other two language versions.

(Case T-7/04)

(2004/C 59/56)

(Language of the case: Italian)

An action against the Office for Harmonisation in the Internal
Market was brought before the Court of First Instance of the
European Communities on 7 January 2004 by Shaker s.a.s. di
Lucia Laudato & C., represented by F. Sciaudone, lawyer. The
other party to the proceedings before the Board of Appeal was
Liminana y Botella S.L.

The applicant claims that the Court should:

— annul the contested decision and/or vary it by rejecting
the opposition by Liminana y Botella S.L., and by granting
the application for registration of the Community trade
mark submitted by the applicant;

— order OHIM to pay the costs of these proceedings.

Pleas in law and main arguments

Party seeking the regis-
tration of
the Com-
munity trade mark:

Relevant
mark:

Community

Owner of the mark or
distinctive sign asserted
in the opposition pro-
ceedings:

Mark or distinctive sign
asserted in the oppo-
sition proceedings:

Opposition Division’s
decision:

The applicant

application

Figurative mark ‘Limoncello della
Costiera Amalfitana-Shaker’ —
Registration
No
1267434 for products in Class-
es 29, 32 and 33 (jellies, preserves,
jams and liqueurs), subsequently
limited to Classes 29 and 33.

Liminana y Botella S.L.

Spanish word mark ‘limonchelo’,
for products in Class 33.

Opposition upheld and appli-
cation for registration rejected,
limited to Class 33.

Appeal Board’s decision:

Appeal dismissed.

C 59/36

EN

Official Journal of the European Union

6.3.2004

Grounds of the appeal:

Wrong application of Article
8(1)(b) of Regulation (EC) No 40/
94 (likelihood of confusion), fail-
ure to state reasons and misuse
of powers by manifest error of
assessment
inconsistency
and
with the Examiner’s decision of
23 November 1999 regarding
partial rejection of the registration
of the mark concerned.

Action brought on 9 January 2004 by Muswellbrook
Limited against the Office for Harmonisation in the
Internal Market (Trade Marks and Designs) (OHIM)

(Case T-8/04)

(2004/C 59/57)

Pleas in law and main arguments

Applicants for the Com-
munity trade mark:

Friedrich Grimm and Engelbert
Rolli

Community trade mark
sought:

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

Mark or sign cited in
opposition:

Community trade mark appli-
cation No 847640 for word mark
SNIKE in relation to certain goods
in classes 12, 25 and 41 (Vehicles,
clothing, footwear, headgear, edu-
cation, entertainment,...)

The applicant, Muswellbrook Ltd.

certain goods

The national figurative mark No
in
88222 for
class 25 (Stockings, socks, shirts,
gloves, coats, footwear, sporting
footwear, ...)

Decision of the Oppo-
sition Division:

Rejection of the opposition

(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)

Decision of the Board of
Appeal:

Dismissal of the appeal

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
9 January 2004 by Muswellbrook Limited, Dublin, Ireland,
represented by Ms P. Koch Moreno, lawyer. Friedrich Grimm
and Engelbert Rolli were also party to the proceedings before
the Board of Appeal.

The applicant claims that the Court should:

— declare that the decision which was issued on 5 November
2003 by the First Board of Appeal of OHIM, which
dismissed the plaintiff’s appeal against the resolution of
29 April 2002 in opposition procedure No B 1181/
2002, which dismissed the opposition that was lodged
against community trade mark application No 847640
for the registration of the word SNIKE in relation to all
the products of class 25 covered by the application, does
not comply with the EC Regulations on Community
Trade Marks, No 40/94, and that the said decision be set
aside;

— declare that there is a risk of confusion between the
community trade mark application with No 847640 for
the word SNIKE in class 25 and Spanish trade mark
No 88222, consisting of the word NIKE with device,
which protects identical products that also fall under
class 25;

— order the respondent and, if applicable, the intervening

party to pay the costs of these proceedings.

Pleas in law:

Violation of Article 8 (1) (b) of
Council Regulation (EC) No 40/
941 (1)

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

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

Action brought on5 January 2004 by Carlos Leite Mateus
against the Commission of the European Communities

(Case T-10/04)

(2004/C 59/58)

(Language of the case: French)

An action against the Commission of the European Communi-
ties was brought before the Court of First Instance of the
European Communities on 5 January 2004 by Carlos Leite
Mateus, residing in Zaventem (Belgium), represented by Sébas-
tien Orlandi, Albert Coolen,
Jean-Noël Louis and Étienne
Marchal, lawyers, with an address for service in Luxembourg.