Case T-135/04: Action brought on 8 April 2004 by GfK Aktiengesellschaft against the Office for Harmonisation in the Internal Market (Trade Marks and Designs)
Date: 2004-07-24
Institutions: Court of First Instance
Subjects: EU trade mark, European Union Intellectual Property Office, action for annulment (EU), business management, consultancy, statistics, trade-mark law

C 190/16

EN

Official Journal of the European Union

24.7.2004

Action brought on 28 January 2004 by Eurodrive Services
and Distribution N.V. against the Office for Harmonisation
in the Internal Market (OHIM)

Decision of Opposition
Division:

services

Upheld for opposition in respect
in Class 39 and
of
in respect of
dismissal
services in Class 41

thereof

(Case T-31/04)

(2004/C 190/26)

Decision of Board of
Appeal:

Dismissal of the appeal

(Language of the case: Spanish)

Pleas in law:

implementation

Incorrect
of
Article 8(1)(b) of Regulation (EC)
No 40/94 and infringement of
Article 73 thereof

An action against the Office for Harmonisation in the Internal
Market (OHIM) was brought before the Court of First Instance
of the European Communities on 28 January 2004 by Euro-
drive Services and Distribution N.V., established in Amsterdam
(Netherlands), represented by E. Armijo Chávarri and A. Castán
Pérez-Gómez, letrados en ejercicio.

The applicant claims that the Court should:

— Annul the OHMI decision (First Board of Appeal) of 12
November 2003 in joined cases R 419/2001-1 and R
530/2001-1;

— Order OHIM to pay the costs.

Pleas in law and main arguments:

Applicant for the Com-
munity trade mark:

Jesús Gómez Frías

Community trade mark
applied for:

728.295

Figurative mark 'EUROMASTER' –
Application No
for
services in Classes 39 (transport
and storage of vehicles and acces-
sories therefor) and 41 (organisa-
tion of sports competitions)

of

Proprietor
the
opposing trade mark or
sign:

The applicant

Opposing trade mark or
sign:

Word marks
'EUROMASTER':
Spanish
(Nos
and
1.613.599
(No
1.613.600),
French
1.624.667), Austrian (172.243),
Benelux (No 495.020), Danish (No
VR 08 0221991), Finnish (No
119.689), English (Nos 1.454.805
(No
and
109.184),
Irish (No B 146.109),
Italian (No 608.701), Portuguese
(Nos 270.847 and 270.848) and
Swedish (No 245.822) for goods
and services in Classes 12, 16 and
37

1.455.074),

Greek

Action brought on 8 April 2004 by GfK Aktiengesellschaft
the Office for Harmonisation in the Internal
against

Market (Trade Marks and Designs)

(Case T-135/04)

(2004/C 190/27)

(Language of the case to be determined pursuant to Article 131(2) of
the Rules of Procedure - language in which the application was
submitted: German)

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 8
April 2004 by GfK Aktiengesellschaft, Nuremberg (Germany),
represented by U. Brückmann and R. Lange, lawyers.

BUS-Betreuungs- und Unternehmensberatungs-GmbH, Munich
(Germany) 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
Office for Harmonisation in the Internal Market
(Trade
Marks and Designs) of 4 February 2004 (Case R 327/2003-
1);

— reject the opposition of the intervener of 6 October 2000
founded on the German word and figurative mark ‘BUS
Betreuungsverbund für Unternehmer und Selbständige e.V.’
(Registration No: DE 1 127 415);

— order the Office to bear the costs.

24.7.2004

EN

Official Journal of the European Union

C 190/17

Pleas in law and main arguments:

Applicant
munity trade mark:

for

Com-

Community trade mark
sought:

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

Mark or sign cited in
opposition.

The applicant

The word mark ‘Online Bus’ for
services
in Class 35 (including
drawing up statistics in the field of
economics, marketing, market
research and market analysis, busi-
ness consultancy and organisation
consultancy)

BUS-Betreuungs- und Unterneh-
mensberatungs-GmbH

German figurative mark ‘BUS’ for
services in Classes 35, 40, 41 and
42 (including business
consul-
tancy,
in particular organisation
consultancy and economic consul-
tancy)

Decision of the Opposi-
tion Division:

Registration refused

the Board

Dismissal of the applicant's appeal

Decision of
of Appeal:

Pleas in law:

European Communities on 8 April 2004 by Domäne Vorder-
riss, of Lenggries (Germany), Rasso Freiherr von Cramer-Klett,
residing in Aschau i. Chiemgau (Germany), and Rechtlerver-
represented by T.
band Pfronten, of Pfronten (Germany),
Schönfeld, lawyer.

The applicants claim that the Court should:

— annul

the Commission decision of 22 December 2003
adopting, pursuant to Council Directive 92/43/EEC, the list
of sites of Community importance for the Alpine biogeo-
graphical region; (1)

— order the Commission to pay the costs of the proceedings.

Pleas in law and main arguments

The applicants are the owners of tracts of forest which are
managed by forestry businesses operated by the respective
applicants and which now, under the contested decision, have
been named as sites of Community importance (SCI) for the
Alpine biogeographical region.

— The intervener has failed to
furnish proof of the use of the
mark on which the opposition
is founded, and the opposition
should be rejected under the
second sentence of Article
43(2) of Regulation (EC) No
40/94.

The applicants submit that the contested decision infringes
their fundamental rights guaranteed by the general principles of
the Community legal order. That infringement of fundamental
rights is formally unlawful because upon adoption of
the
Commission Decision (and upon implementation of Directive
92/43/EEC) (2) no form of right of participation is bestowed
upon the property owners concerned.

— As

there

is no similarity
between the opposing marks,
there is no likelihood of confu-
sion within the meaning of
Article 8(1)(b) of Regulation
(EC) No 40/94.

Action brought on 8 April 2004 by Domäne Vorderriss,
Rasso Freiherr von Cramer-Klett and Rechtlerverband
the European
Pfronten against

the Commission of

Communities

(Case T-136/04)

(2004/C 190/28)

(Language of the case: German)

An action against the Commission of the European Commu-
nities was brought before the Court of First Instance of the

The applicants further submit that the contested decision also
materially infringes the applicants' property rights because no
consideration was given to the private property rights of the
applicants (and the other persons affected) at the time of desig-
nation of the SCIs and there was therefore no balancing of the
importance of the intended designation of SCIs against that of
the applicants' private rights. Furthermore, the contested deci-
sion is contrary to the provisions of Directive 92/43/EEC itself
because the question of the compensation to be paid remains
entirely open and unresolved.

The applicants also submit
the contested decision is
that
disproportionate since it is of itself not suitable to create a
coherent European ecological network, and a ‘list of individual
units’ for only one biogeographical region is thus incapable of
achieving the directive's objective of providing protection. The
contested decision is inappropriate also because the required
Community-wide coordination was not achieved.

(1) OJ L 14, 21.1.2004, p. 21.
(2) Council Directive 92/43/EEC of 21 May 1992 on the conservation
of natural habitats and of wild fauna and flora (OJ L 206,
22.7.1992, p. 7).