Action brought on 4 February 2004 by Sunplus Technology Co. Ltd., against the office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM)
Date: 2004-04-17
Institutions: Court of First Instance
Subjects: EU trade mark, European Union Intellectual Property Office, action for annulment (EU), computer, electronic component, recording medium, trade-mark law

C 94/48

EN

Official Journal of the European Union

17.4.2004

The Applicant further invokes a number of alleged substantive
law violations by the contested regulation, namely:

— breach of

the principle of relative stability and related
in particular
provisions of the Common Fisheries Policy,
Article 33 EC and Regulation 2371/2002 (1) Official Journal
L 358, 31/12/2002 P. 0059 - 0080

— breach of Article 299 paragraph 2 EC

— breach of Articles 6 and 174 EC, and of the environmental
law principles that is to say, the precautionary principle,
the principle of preventive action, the principle of rectifica-
tion of damage at source and the principle that the polluter
should pay.

— breach of

the fundamental objectives of
Article 158 EC and of the principle of proportionality

the Treaty, of

— breach of mandatory public international law requirements

and thus of Article 300(7) EC

— breach of Regulation 1275/94 (2) Official Journal L 140,
03/06/1994 P. 0001-0002 adopted to facilitate the integra-
tion of Spain and Portugal into the general scheme of the
Common Fisheries Policy.

(1) Council Regulation (EC) No 1954/2003 of 4 November
2003 on the management of the fishing effort relating to
certain Community fishing areas and resources and modi-
fying Regulation (EC) No 2847/93 and repealing Regula-
tions (EC) No 685/95 and (EC) No 2027/95 Official Journal
L 289 , 07/11/2003 P. 0001 - 0007

(1) Council Regulation (EC) No 2371/2002 of 20 December
2002 on the conservation and sustainable exploitation of
fisheries resources under the Common Fisheries Policy

(2) Council Regulation (EC) No 1275/94 of 30 May 1994 on
adjustments to the arrangements in the fisheries chapters of
the Act of Accession of Spain and Portugal

Action brought on 4 February 2004 by Sunplus Tech-
nology Co. Ltd., against the office for Harmonisation in
the Internal Market (Trade Marks and Designs) (OHIM)

(Case T-38/04)

(2004/C 94/132)

(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 4
February 2004 by Sunplus Technology Co. Ltd., Hsin-Chu,

Taiwan, represented by Dr H. Eichmann, Mr G. Barth, Dr U.
Blumenröder, Ms C. Niklas-Falter, Dr M. Kinkeldey, Dr K.
Brandt, Ms A. Franke, Ms U. Stephani, Dr B. Allekotte, Dr
E.Pfrang, Ms K. Lochner, Ms B. Ertle, Ms Christine Neuhierl and
Ms Sabine Prückner, lawyers.

Sun Microsystems, Inc., was also a party to the proceedings
before the Board of Appeal.

The applicant claims that the Court should:

— annul the decision of the First Board of Appeal of the
(Trade
Office for Harmonisation in the Internal Market
Marks and Designs) in Case R 642/2000-4 of 7 October
2003;

— order the costs of the proceedings to be borne by the defen-

dant.

Pleas in law and main arguments:

Applicant for the Com-
munity trade mark:

Sunplus Technology Co. Ltd.

The Community trade
mark sought:

Proprietor of mark or
sign cited in the opposi-
tion proceedings:

Mark or sign cited in
opposition:

The figurative mark ‘SUNPLUS’ for
certain goods in class 9 (Chips;
semi-conductors; micro-processing
(trade
chips; program cards;...)
mark application No 214346)

Sun Microsystems Inc.

The national verbal and figurative
marks ‘SUN’ for goods in class 9
(computers; magnetic and elec-
tronic data carriers;...)

Decision of the Opposi-
tion Division:

Rejection of the trade mark appli-
cation

Decision of
of Appeal (1):

the Board

Dismissal of
by the applicant

the appeal brought

Pleas in law:

Infringement of Article 8(1) (b) of
Council
(EC) No
40/94 (2) in that there is no likeli-
hood of confusion.

Regulation

(1) Decision of the Fourth Board of Appeal of the Office for
Harmonisation in the Internal Market (Trade Marks and
Designs) in Case R 642/2000-4 of 7 October 2003

(2) Council Regulation (EC) No 40/94 of 20 December 1993

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