Case T-178/04: Action brought on 17 May 2004 by MPS Group Inc., against the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM)
Date: 2004-08-07
Institutions: Court of First Instance
Subjects: EU trade mark, European Union Intellectual Property Office, action for annulment (EU), advertising, employment service, marketing, trade-mark law

7.8.2004

EN

Official Journal of the European Union

C 201/17

The applicant maintains that privately-owned hospitals must
generally finance themselves from sums paid under health-care
arrangements entered into with the appropriate health-insur-
ance schemes and their central associations and, where applic-
able, from direct contributions for hospital construction under
funding arrangements
in place in the relevant Land. By
contrast, publicly-owned hospitals also benefit from the fact
that their regular operating losses are consistently covered by
the relevant public authorities. In the applicant's opinion, those
payments constitute aid within the meaning of Article 87(1) EC
which not only is subject to a notification requirement under
Article 88(3) EC but is also incompatible with the common
market.

The applicant also maintains that the complaint is well founded
as the Commission has failed to act notwithstanding a duty to
act upon receipt of the complaint.

errors of assessment by the Commission. More particularly, it
claims that the Commission failed to consider properly the
following matters:

— the enhancement of

the merged entity's dominance on
routes where there was no existing overlap between Air
France and KLM;

— whether the merger created or strengthened a dominant
position in markets for the purchase of airport services;

— the effects of the merger on potential competition.

that

further claims

It
the Commission failed to provide
adequate reasons to support its conclusion that the airports
‘Charles de Gaulle’ and ‘Orly’ in Paris were substitutable. Finally,
it considers that the undertakings of the parties were manifestly
inadequate to restore a structure of effective competition on
markets where dominance concerns arose and that
the
Commission committed an error of assessment in accepting
them.

Action brought on 14 May 2004 by easyJet Airline
the
Company Limited against

the Commission of

(1) OJ L 257/90, p. 13

European Communities

(Case T-177/04)

(2004/C 201/37)

(Language of the case: English)

An action against the Commission of the European Commu-
nities was brought before the Court of First Instance of the
European Communities on 14 May 2004 by easyJet Airline
Company Limited, Luton, United Kingdom, represented by Mr
J. Cook, Mr S. Dolan and Mr J. Parker Solicitors.

The applicant claims that the Court should:

— Annul the Commission's Decision of 11 February 2004 in
Case No. COMP/M.3280 (Air France/KLM) declaring a
concentration to be compatible with the common market,
subject to conditions, in accordance with Article 6 (1) (b)
and Article 6 (2) of Council Regulation (EEC) No.
4064/89 (1)

— order the Commission to pay the costs

Pleas in law and main arguments:

In the contested decision the Commission concluded that the
merger between the airlines ‘Air France’ and ‘KLM’ would result
in the creation or strengthening of a dominant position on a
total of fourteen city-to-city air routes. However, the Commis-
sion declared the concentration compatible with the common
market, subject to compliance with the undertakings submitted
by the parties to the merger.

The applicant, which is itself an airline company, seeks the
annulment of that decision invoking a number of manifest

Action brought on 17 May 2004 by MPS Group Inc.,
the Office for Harmonisation in the Internal
against
Market (Trade Marks and Designs) (OHIM)

(Case T-178/04)

(2004/C 201/38)

(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 17
May 2004 by MPS Group Inc., Jacksonville, Florida, USA repre-
sented by Ms K. O'Rourke and Mr P. Kavanagh Solicitors.

Modis-Distribuiçao Centralizada SA was also a party to the
proceedings before the Board of Appeal.

The applicant claims that the Court should:

— Annul the Decision of the Fourth Board of Appeal of 4
February 2004 insofar as it upheld Opposition number
B000170599 with respect to the following services in class
‘Employment agency services, recruitment consultancy
35:
services; payroll preparation services;
recording
services; provision of temporary and permanent staff’;

time

— in the alternative, annul the decision insofar as it covers the
following services in class 35: ‘Employment agency services,
recruitment consultancy services, provision of temporary
and permanent staff’.

C 201/18

EN

Official Journal of the European Union

7.8.2004

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:

Decision of the Opposi-
tion Division:

Decision of
of Appeal :

the Board

MPS Group Inc.

The Community trade mark appli-
cation No 778795 ‘MODIS’
for
services in class 35 (employment
recruitment
agency
consultancy
payroll
preparation services,...), class 41
(staff
training services) and class
42 (psychometric testing)

services,

services,

Modis Distribuiçao Centralizada
SA

Portuguese

trade mark
The
‘MODIS’ for services in class 35
(Advertising,
business manage-
ment and business administration)

Rejection of the Community trade
mark application for classes 35
and 41 and admission of
the
application for class 42.

Annulment of the Decision of the
Opposition Division as it upheld
the opposition with respect to the
services applied for in Class 41,
remittal of
the case for further
prosecution to the examiner and
rejection of
the
remainder.

the appeal

for

— Annul

the Commission's decision to recover

the daily
subsistence allowances paid to the applicant during the
period when temporary accommodation was made avail-
able to him;

— Order the defendant to pay the costs.

Pleas in law and main arguments

The applicant, an official of the Commission, took up his post
in the Commission's delegation to Zagreb on 2 February 2002
and until 19 September 2002 stayed in accommodation made
available by the Commission. By the contested decision, the
Commission decided to recover the daily subsistence allow-
ances paid to the applicant during that period on the ground
that he was not entitled to them, as he had stayed in an apart-
ment provided by the Commission.

In support of his action, the applicant claims that there has
been a breach of Article 10 of Annex VII to the Staff Regula-
tions. He alleges that the Commission made the accommoda-
tion available only on a temporary basis, without security of
tenure, and that he was therefore not prevented from receiving
the daily subsistence allowances. He further claims that there
has been an infringement of the principle of legitimate expecta-
tions, on the ground that the Commission gave him specific
assurances concerning payment of the daily subsistence allow-
ances while he was staying in the apartment in question.

Pleas in law:

Violation of Articles 8(1)(a) and
8(1)(b)of Council Regulation No
40/94 on the Community Trade
Mark (1)
the
in deciding
services concerned were similar.

that

Action brought on 25 May 2004 by Spa Monopole,
Compagnie Fermière de Spa against the Office for Harmo-
nisation in the Internal Market (Trade Marks and Designs)
(OHIM)

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

Community trade mark (OJ 11, p. 1)

(Case T-186/04)

(2004/C 201/40)

(Language of the case: French)

Action brought on 17 May 2004 by Siegfried Krahl against
the Commission of the European Communities

(Case T-179/04)

(2004/C 201/39)

(Language of the case: French)

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 25
May 2004 by Spa Monopole, Compagnie Fermière de Spa,
established in Spa (Belgium), represented by L. de Brouwer, E.
Cornu, E. De Gryse and D. Moreau, lawyers.

Spaform Limited was also a party to the proceedings before the
Board of Appeal.

The applicant claims that the Court should:

An action against the Commission of the European Commu-
nities was brought before the Court of First Instance of the
European Communities on 17 May 2004 by Siegfried Krahl,
residing in Zagreb (Croatia), represented by Sébastien Orlandi,
Albert Coolen, Jean-Noël Louis and Etienne Marchal, lawyers,
with an address for service in Luxembourg.

— annul Decision R 0827/2002-4 of 25 February 2004 of the
Fourth Board of Appeal dismissing the appeal by the appli-
cant against the Opposition Division's decision to dismiss
the opposition brought by the applicant against registration
of the word mark ‘SPAFORM’ for goods in Classes 7, 9 and
11.

The applicant claims that the Court should:

— order OHIM to pay the costs.