Action brought on 18 February 2004 by Société des Produits Nestlé S.A. against the Office for Harmonisation in the Internal Market
Date: 2004-04-17
Institutions: Court of First Instance
Subjects: EU trade mark, European Union Intellectual Property Office, action for annulment (EU), foodstuff, trade-mark law

C 94/64

EN

Official Journal of the European Union

17.4.2004

Pleas in law and main arguments:

— Declare the Commission's decision void;

Applicant
munity trade mark:

for

Com-

Anheuser-Busch Inc.

— Order the Commission to pay the costs.

Community trade mark
sought:

Figurative mark ‘AB GENUINE
BUDWEISER KING OF BEERS’for
goods in class 32 (beer etc.)

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

Mark or sign cited in
opposition:

Budejovicky Budvar

Word national mark ‘BUDWEISER’

Decision of the Opposi-
tion Division:

Registration refused

Decision of
of Appeal:

Pleas in law:

the Board

Appeal rejected

Infringement of Articles 42 (2), (3)
of Regulation 40/94.
In the
context of this plea, the applicant
contends that
the proof of use
submitted by the opponent was
insufficient to sustain genuine use.
Infringement of Article 8 (1) (b) of
Regulation 40/94.
In this
applicant
context,
submits that there is no likelihood
of confusion between the marks in
question.

the

Pleas in law and main arguments

The applicant disputes the decision of
the Commission to
refuse to pay her the expatriation allowance under Article 4 of
Annex VII to the Staff Regulations on the ground that her
professional activities in Brussels could not be considered to be
work done for another Member State.

In support of her application, the applicant submits that the
Commission has committed an error in its assessment of the
facts and of her position in fact. According to the applicant,
her habitual residence and the centre of her interests were in
Austria.

The applicant submits further that the Commission made an
error of law in taking the view that the applicant worked in the
interest and service of the Verbindungstelle der Bundesländer
and of the office of the Österreichischer Gewerkschaftsbund
and did not carry out work for a Member State. The applicant
submits that that view reveals a misunderstanding of the struc-
ture of the Austrian State.

Finally, she submits that there was a breach of the principle of
equal treatment in that other officials in the same position
received the expatriation allowance.

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

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

Action brought on 18 February 2004 by Société des
Produits Nestlé S.A. against the Office for Harmonisation
in the Internal Market

Action brought on 13 February 2004 by Sonja Hosman-
Chevalier against Commission of the European Commu-
nities

(Case T-74/04)

(2004/C 94/161)

(Language of the case: French)

(Case T-72/04)

(2004/C 94/160)

An action against the Office for Harmonisation in the Internal
Market was brought before the Court of First Instance of the
European Communities by Société des Produits Nestlé S.A.,
having its registered office in Vevey (Switzerland), represented
by Jean-Jo Evrard, lawyer.

(Language of the case: French)

Quick Restaurants S.A. was also party to the proceedings
before the Second Board of Appeal.

An action against the Commission of the European Commu-
nities was brought before the Court of First Instance of the
European Communities on 13 February 2004 by Sonja
Hosman-Chevalier, residing in Brussels, represented by Ramón
García-Gallardo Gil-Fournier and Ellen Wouters, lawyers.

The applicant claims that the Court should:

— set aside the decision of the Second Board of Appeal of the

defendant of 17 December 2003;

The applicant claims that the Court should:

— order the defendant to pay the costs.

17.4.2004

EN

Official Journal of the European Union

C 94/65

Pleas in law and main arguments:

The applicants claim that the Court should:

Applicant for the Com-
munity trade mark:

Société des Produits Nestlé S.A.

Community trade mark
concerned:

Figurative trade mark ‘QUICKY’ —
application No 467 746, filed for
products in Classes 29 (meat etc.),
30 (coffee etc.) and 32 (mineral
waters etc.)

Proprietor of the trade
mark or sign entering
opposition:

QUICK RESTAURANTS, a public
constituted
limited
under Belgian law

company

— Annul

the decision of 9 December 2003 whereby the
appointing authority rejected complaint No R/456/03
formulated by the applicant on 29 July 2003;

— Order the Office for the administration and payment of
individual entitlements of
the European Commission to
recalculate the number of days' annual leave not taken by
the applicant on the date on which he left the service and
to adjust,
in accordance with the second paragraph of
Article 4 of Annex V to the Staff Regulations, payment for
the 31 days not taken in 2002, plus interest at the applic-
able rate;

Trade mark or sign on
of which
the
opposition was made:

basis

National and international word
and figurative trade marks ‘QUICK’
and ‘QUICKIES’

— Order the Commission to pay the costs.

Decision of the Opposi-
tion Division:

Registration refused

Decision of
of Appeal:

the Board

Appeal dismissed

Pleas in law relied on:

Wrongful application of Article
8(1)(b) of Regulation (EC) No 40/
94 (1). The applicant claims that
the trade marks in question are
not phonetically and conceptually
similar.

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

on the Community trade mark (OJ 1994 L 11, p.1)

Action brought on 19 February 2004 by Jean-Pierre
Castets against Commission of the European Communities

(Case T-80/04)

(2004/C 94/162)

(Language of the case: French)

An action against the Commission of the European Commu-
nities was brought before the Court of First Instance of the
European Communities on 19 February 2004 by Jean-Pierre
Castets, residing in Saint Victor Des Oules (France), represented
by Grégory Crétin, lawyer.

Pleas in law and main arguments

The applicant in the present case, who was retired and awarded
an invalidity pension, disputes the number of days of leave in
respect of which he received compensation when he left the
service.

In support of his claims, he alleges that it follows from the
applicable provisions of the Staff Regulations that:

— the conclusions of the Heads of Administration No 53A/70
of 9 January 1970, which limit to 12 working days the
amount of annual leave that can be carried forward, even in
the event of prolonged sickness, cannot be applied, since
they are contrary to the applicable provisions of the statute;

— an official on sick leave cannot apply to carry forward days
of annual leave, since such an act is a step of an occupa-
tional nature which an official on sick leave is not required
to carry out;

— an official who has not used up his annual

leave upon
leaving the service is entitled, without any limit, to payment
of compensation for the whole of his annual leave which
could not be used up owing to the needs of the service;

— the fact of being on sick leave for a full year clearly consti-
tutes a need of the service which justifies days of leave in
excess of 12 days being carried forward.