Case T-3/04: Action brought on 7 January 2004 by Simonds Farsons Cisk Plc., against the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM)
Date: 2004-03-06
Institutions: Court of First Instance
Subjects: EU trade mark, European Union Intellectual Property Office, action for annulment (EU), beverage, trade-mark law

6.3.2004

EN

Official Journal of the European Union

C 59/33

In support of their claims the applicants submit that the
Commission, having only limited discretion, was obliged, in
accordance with the principle of sound administration, to deal
diligently and impartially with the complaint in this case. They
argue that in that respect, that the Commission’s discretion in
the matter at issue must correspond to the objective of
establishing a scheme which ensures that competition is not
distorted in the common market, so that the Member States
do not adopt, in favour of one undertaking, measures which
may give rise to the elimination or restriction of effective
competition in the market at issue.

that

the fact

the
This application also takes account of
Commission itself has assessed the conditions of competition
in the referral decision, so as to include all the criteria which
may be used for the purpose of determining whether the
measures adopted maintain or preserve competition in the
markets at issue, and also that it has accepted commitments
which are substantially different in another current and very
similar case (M.2876 Newscorp/telepiú), and that therefore it
cannot be claimed that the measures adopted by the Spanish
Government maintain or preserve competition in the markets
concerned.

as it refused the application for registration of VELOCITY
as a trade mark on the basis of Articles 7(1)(b) and (c) of
the CTMR;

— order the Office to bear its own costs and pay those of

the Applicant.

Pleas in law and main arguments

Trade mark concerned:

Verbal trade mark ‘VELOCITY’ —
Application No 1661842.

Products or services:

Products and services in classes 9,
16, 37 and 42.

Challenged
before
Appeal:

Decision
the Board of

Refusal of
examiner.

registration by the

Pleas in law:

Infringement of Article 7 (1) (b)
and (c) of Regulation No 40/94.

(1) OJ L 395 of 30.12.89, p. 1.

Action brought on 2 January 2004 by Electronics for
Imaging, Inc., against Office for Harmonisation in the
Internal Market (Trade Marks and Designs) (OHIM)

(Case T-1/04)

(2004/C 59/52)

(Language of the case: 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
2 January 2004 by Electronics for Imaging, Inc., Foster City,
California, USA, represented by Mr S. Malynicz, Barrister.

Action brought on 7 January 2004 by Simonds Farsons
Cisk Plc., against the Office for Harmonisation in the
Internal Market (Trade Marks and Designs) (OHIM)

(Case T-3/04)

(2004/C 59/53)

(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
7 January 2004 by Simonds Farsons Cisk Plc., Mriehel, Malta,
represented by Ms M. Bagnall and Mr I. Wood, Solictors and
Mr R. Hacon, Barrister. SA Spa Monopole, Compagnie fermière
de Spa, en abrégé SA Spa Monopole NV., was also a party to
the proceedings before the Board of Appeal.

The applicant claims that the Court should:

The applicant claims that the Court should:

— annul the decision of the Fourth Board of Appeal dated
25 August 2003, case number R 0793/2002-4 in so far

— annul the Decision of the First Board of Appeal of

4 November 2003;

C 59/34

EN

Official Journal of the European Union

6.3.2004

— uphold Decision No 2880/2002 of 27 September 2002

of the Opposition Division;

Action brought on 5 January 2004 by R.K. Achaiber Sing
against the Commission of the European Communities
and Council of the European Union

— require OHIM to refuse the CTM Application;

— order Spa Monopole and/or OHIM to (a) bear the costs
of the Opposition proceedings (b) the proceedings before
the Board of Appeal, and (c) the costs of these proceed-
ings.

Pleas in law and main arguments

Applicant for the Com-
munity trade mark:

S.A. Spa Monopole N.V.

The Community trade
mark concerned:

Proprietor of the right to
the trade mark or sign
asserted by way of oppo-
sition in the opposition
proceedings:

Trade mark or
sign
asserted by way of oppo-
sition in the opposition
proceedings:

The figurative mark ‘KINJI by SPA’
for goods in Classes 29 and 32
(e.g. fruit pulp and mineral and
aerated waters and other non-
alcoholic drinks containing fruit
juice)

The applicant

(No 427 237)

The Community trade mark ‘KIN-
NIE’
for goods
in Class 32 (Beers; non-alcoholic
drinks; preparations for making
beverages)

Decision of the Oppo-
sition Division:

Rejection of
application

the

trade mark

Decision of the Board of
Appeal:

Annulment of the Decision of the
Opposition Division and rejection
of the opposition

Grounds of claim:

— Violation of Article 8 (1)(b)
of Regulation (EC) No 40/
94;

— Breach of Article 73 of Regu-

lation (EC) 40/94;

— Likelihood of confusion on
the part of the public in all,
or alternatively in a signifi-
cant proportion of territories
within the European Com-
munity.

(Case T-4/04)

(2004/C 59/54)

(Language of the case: Dutch)

An action against the Commission of the European Communi-
ties and Council of the European Union was brought before
the Court of First Instance of the European Communities on
5 January 2004 by R.K. Achaiber Sing, residing in Leiden
(Netherlands), represented by J.G.G. Wilgers.

The applicant claims that the Court should:

1.

2.

Primarily, declare that Decision 2000/666/EC contains a
measure having an equivalent effect to a quantitative and
qualitative restriction on imports between Member States
of the World Trade Organisation and that this decision is
at variance with Article 131 of the EEC Treaty, with the
result that it is null and void;

Primarily and in the alternative, order the European
Community to pay compensation in respect of
the
damage,
to be quantified, which the applicant has
incurred as a result of the obligations arising under
Decision 2000/666/EC;

3. Order the Community to pay the costs of the proceedings.

Pleas in law and main arguments

The applicant imports live birds from non-member countries
and states that he is obliged under the contested decision to
incur costs for the establishment of a quarantine area. He states
further that, as he has recently discovered, he is obliged to
incur further costs by reason of the national provisions giving
effect to the contested decision.

the contested decision is at
The applicant submits that
variance with the Agreement establishing the World Trade
Organisation, and in particular with Articles 2(2) and 3 of the
Agreement on the Application of Sanitary and Phytosanitary
the contested decision
Measures.
constitutes a hidden barrier to trade which makes commerce
in live, non-protected birds practically impossible.

In the applicant’s view,