Case T-211/04: Action brought on 9 June 2004 by the Government of Gibraltar against the Commission of the European Communities
Date: 2004-08-28
Institutions: Court of First Instance
Subjects: European Commission, Gibraltar, State aid, United Kingdom, action for annulment (EU), control of State aid, corporation tax, tax exemption, tax reform

28.8.2004

EN

Official Journal of the European Union

C 217/27

of

Decision
the
Opposition Divi-
sion:

Opposition rejected

Decision
Board of Appeal:

of

the

Pleas in law:

Decision of
annulled and registration refused

the Opposition Division

Misinterpretation of Article 8(e)(2)(a) of
Regulation No 40/94 by the Board of
Appeal inasmuch as it found that regis-
tration of the trade mark sought could
result in a likelihood of confusion with
Community trade marks No 587725
and No 771196

According to the tenth recital of the
preamble to the Community trade mark
directive, assessment of the likelihood
of confusion depends on numerous
factors …. In the contested decision, the
Board of appeal committed a manifest
error of assessment in that, after setting
out a number of such factors in general
terms, it failed subsequently to fulfil its
obligation to make a global assessment
thereof.

By analysing the signs by comparison
with each other, the contested decision
failed to carry out a global assessment
of the signs in question, a test set down
in, among others, Case C-342/97 Lloyd
Schuhfabrik Meyer [1999] ECR I-3819,
paragraph 25.

Manifest contraction by the Board of
Appeal in that, while citing the ‘global
assessment of the signs in question’ test,
it subsequently adopted a different test
and proceeded to ‘dissect’
the Com-
munity trade mark whose application
was sought.

The applicant claims that the decision
of
the Board of Appeal concludes,
surprisingly, that despite all the dissimi-
larities between the signs in issue, there
is a likelihood of confusion between the
trade marks in question.

Account should also have been taken of
all the Community trade marks regis-
tered by third parties
in respect of
goods
in Classes 6, 17 and 19
containing the suffix and/or prefix ‘FIX’,
some of which pre-date those of the
opponent's. Given that there is no likeli-
hood of confusion as between them, it
the
cannot be claimed that

that of

applicant may be confused with those
of the opponent.

The predominant feature of the trade
marks in issue is their characteristic
portrayal,
together with a particular
graphic presentation.

In conclusion: there is no likelihood of
confusion in the mind of the consumer
in the event of there coexisting on the
market of different signs which merely
coincide in the term ‘FIX’.

Action brought on 9 June 2004 by the Government of
the European
Gibraltar

the Commission of

against

Communities

(Case T-211/04)

(2004/C 217/49)

(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 9 June 2004 by the Government of
Gibraltar, represented by M. Llamas, lawyer, J. Temple Lang,
Solicitor, A. Petersen, lawyer, and K. Nordlander, lawyer.

The applicant claims that the Court should:

— annul the decision in its entirety;

— order the Commission to pay Gibraltar's legal and other

costs and expenses in relation to this matter.

Pleas in law and main arguments:

The applicant contests the Commission decision of 30 March
2004 on the aid scheme which the United Kingdom is planning
to implement with regard to the Government of Gibraltar
Corporation Tax Reform (1). In the decision, the Commission
finds that the proposed tax reform constitutes state aid incom-
patible with the common market.

in Gibraltar compared to companies

The applicant states that the Commission considers the reform
regionally selective in that it confers tax advantages to compa-
nies
in the United
Kingdom and that the reform is materially selective in that
specific features confer tax advantages to some companies in
Gibraltar compared to other companies in Gibraltar.

In support of its application, the applicant submits firstly that
the Commission misapplied the law and committed errors in
reasoning in finding that Gibraltar's proposed tax reform is
regionally selective.

C 217/28

EN

Official Journal of the European Union

28.8.2004

In this regard, the applicant states that the assumption that
Gibraltar is part of the United Kingdom, is wrong. According
to the applicant, this is clear under domestic constitutional law,
public international law and Community law.

Action brought on 8 June 2004 by the Royal County of
Berkshire Polo Club Ltd against the Office for Harmonisa-
tion in the Internal Market (Trade Marks and Designs)
(OHIM)

selectivity principle

furthermore submits that

the Commission's
The applicant
regional
apply to Gibraltar.
According to the applicant, the decision concerns two tax juris-
dictions which are entirely separate and mutually exclusive so
that Gibraltar's tax laws cannot be treated as derogations from
tax law in the United Kingdom.

cannot

Secondly, the applicant submits that the Commission misap-
plied the law and committed errors in reasoning in finding that
tax reform is materially selective. According to the applicant,
the reform is of a general nature and represents a reasonable
choice of economic policy by Gibraltar.

According to the applicant, the provisions that companies who
make no profits are not taxed and that companies are not
required to pay more than a specified maximum amount, are
merely designed to avoid over-taxation and do not apply selec-
tively to a particular group or category.

(Case T-214/04)

(2004/C 217/50)

(Language of the case to be determined pursuant to Article 131(2) of
the Rules of Procedure Language in which the application 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 8
June 2004 by the Royal County of Berkshire Polo Club Ltd,
Windsor (United Kingdom), represented by J. H. Maitland
Walker, Solicitor, and D. McFarland, Barrister.

The Polo/Lauren Company LP was also a party to the proceed-
ings before the Board of Appeal.

The applicant claims that the Court should:

— annul the decision of the First Board of Appeal of March
25, 2004 in case R 273/2002-1 rejecting the applicant's
application

— order the Office to pay the costs

Pleas in law and main arguments:

Applicant
munity trade mark:

for

Com-

The applicant also claims that the Commission is wrong in
stating in relation to the payroll tax and property tax not
applying to companies without commercial buildings or
employees in Gibraltar, that the reform exempts an offshore
sector and is materially selective on hat ground. The applicant
claims furthermore that
the Commission breached essential
procedural requirements in this regard because neither the
United Kingdom nor the applicant were given an opportunity
to comment on this issue during the formal investigation.

Community trade mark
sought:

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

the applicant

Figurative mark ‘ROYAL COUNTY
OF BERKSHIRE POLO CLUB’for
goods in class 3 (cleaning prepara-
tions etc.)

Polo Lauren Company LP

Finally, the applicant submits that the reform cannot be consid-
ered selective because its nature, general scheme and essential
features are designed to suit the special characteristics of the
economy in Gibraltar and in particular its limited size, scarcity
of labour, service dominated industry and operational simpli-
city for a small administration.

(1) State aid C 66 /2002 — Gibraltar government corporation tax

reform

Mark or sign cited in
opposition:

National
and work
marks containing the word ‘POLO’

figurative

Decision of the Opposi-
tion Division:

Opposition rejected

Decision of
of Appeal:

the Board

Decision of
the opposition divi-
sion annulled; registration refused

Pleas in law:

Violation of Article 8(1)(b) of
Regulation 40/94 (1). The appli-
cant argues that the signs in ques-
tion are dissimilar.