Case T-186/04: Action brought on 25 May 2004 by Spa Monopole, Compagnie Fermière de Spa 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), mineral water, plumbing equipment, pressure equipment, trade-mark law

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.

7.8.2004

EN

Official Journal of the European Union

C 201/19

Pleas in law and main arguments:

European  Communities  on  19  May  2004  by  DJ  (*), 
represented  by  Carlos  Mourato, lawyer.

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.

Spaform Limited

Word mark ‘SPAFORM’ — appli-
cation No 609 776 for goods in
Classes 7 (pumps, etc.), 9 (appa-
for
ratus
measuring
11
(whirlpool baths)

instruments
and

pressure)

and

The applicant claims that the Court should:

—  Annul  the  decision  of  22  July  2003  of  the  Appeal  Assessor
concerning the applicant's career development report for
the period 1 July 2001 to 31 December 2002;

The applicant

— Annul the appointing authority's implied decision of 20
February 2004 giving a negative reply to the applicant's
complaint;

national mark

The
SPA for
products in Classes 32 (mineral
waters, etc.)

— Order the defendant to pay the costs of the case and also
the essential costs incurred for the purposes of the proceed-
ings,
in particular the costs of domiciliation, travel and
lodging, and also lawyers' fees.

Decision of the Opposi-
tion Division:

Dismissal of the application

Decision of
of Appeal:

Pleas in law:

the Board

Dismissal of the appeal

Pleas in law and main arguments

Infringement of Article 18(1) of
Regulation (EC) No 2868/95 (1).
On the basis of that article, the
Opposition Division held that the
information available to the Office
at
the opposition
period did not permit identifica-
tion of the earlier mark relied on.
The applicant calls
in question
that finding.

end of

the

In support of his action, the applicant claims first of all that
there has been a series of breaches of the assessment procedure
and of the provisions for the implementation of Article 43 of
the Staff Regulations, namely:

— the fact

that a different official should have been his
assessor, since it was the official who was his hierarchical
superior and not the assessor who appears in the contested
report,

(1) Commission Regulation (EC) No 2868/95 of 13 December 1995
implementing Council Regulation (EC) No 40/94 on the Com-
munity trade mark (OJ 1995 L 303, p. 1).

— failure to consult his previous superiors,

— the belated nature of the second dialogue and also of the

opinion of the Appeal Assessor,

Action  brought  on  19  May  2004  by  DJ  (*)  against the 
Commission of the European Communities

— the allegedly unlawful appointment of the President of the

Joint Assessment Committee.

(Case T-187/04)

(2004/C 201/41)

(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

the independence of

The applicant also claims that there has been a breach of the
internal auditors, on the
principle of
ground that one of
the Joint Assessment
the members of
Committee was from a Directorate-General audited by the
applicant and that the applicant's Appeal Assessor was the
Secretary-General of the Commission, who was himself liable
to be audited. The applicant claims that in the light of that
situation, it is the Vice-President responsible for the reform of
the Commission who should have been his Appeal Assessor.
Last, the applicant relies on breach of the obligation to state
reasons and of the principle of equal treatment and also on
manifest errors of assessment by the assessor.

(*)   Information erased or replaced within the framework of protection of personal data and/or confidentiality.