Case T-206/04: Action brought on 7 June 2004 (fax/e-mail: 2 June 2004) by Fernando Rodrigues Carvalhais against the Office for Harmonisation in the Internal Market (Trade Marks and Designs)
Date: 2004-08-28
Institutions: Court of First Instance
Subjects: EU trade mark, European Union Intellectual Property Office, action for annulment (EU), building materials, metal product, plastics, section, trade-mark law

C 217/26

EN

Official Journal of the European Union

28.8.2004

Action brought on 8 June 2004 by Alessandro Ianniello
against the Commission of the European Communities

(Case T-205/04)

(2004/C 217/47)

(Language of the case: French)

Action brought on 7 June 2004 (fax/e-mail: 2 June 2004)
by Fernando Rodrigues Carvalhais against the Office for
Harmonisation in the Internal Market (Trade Marks and
Designs)

(Case T-206/04)

(2004/C 217/48)

(Language of the case: Portuguese)

An action against the Commission of the European Commu-
nities was brought before the Court of First Instance of the
European Communities on 8 June 2004 by Alessandro
Ianniello, residing at Brussels, represented by S. Rodrigues and
Y. Minatchy,
lawyers, with an address for service in Luxem-
bourg.

The applicant claims that the Court should:

— annul the decision of the appointing authority (AIPN) of 18
February 2004 replying to Mr Alessandro Ianniello's
complaint, and annul the career evaluation report estab-
lished with regard to him for the period from 1 July 2001
to 31 December 2002;

— declare that

the European Community is liable extra-
contractually because of the contested decision and the late
establishment of the career evaluation report concerning
the applicant
for the period from 1 July 2001 to 31
December 2002;

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 7 June
2004 (fax/e-mail: 2 June 2004) by Fernando Rodrigues Carval-
hais, represented by Paulo Graça, lawyer.

PROFILPAS, S.N.C. (Ufficio Veneto Brevetti) was also a party to
the proceedings before the Board of Appeal

The applicant claims that the Court should:

— annul the decision of 18 March 2004 (Joined Cases R
2407/2002 of 8 August 2002 and R 408/2003 1) of the
First Board of Appeal of the Office for the Harmonisation
of Internal Market (OHIM);

— order the defendant to pay the costs.

— award the applicant damages for the loss suffered, in the

sum of EUR 5 000;

Pleas in law and main arguments:

— order the defendant to pay all the costs.

Pleas in law and main arguments:

the AIPN's decision of 18
This action is brought against
February 2004 rejecting the applicant's complaint seeking the
reconsideration of his career evaluation report for the period
from 1 July 2001 to 31 December 2002, by which it was not
considered necessary to open an administrative enquiry on
certain documents produced to the Joint Evaluation Commis-
sion of the RELEX Directorate General.

In support of his claims, the applicant relies on breach of
certain essential procedural requirements, such as the rights of
the defence, the administration's duty of impartiality and the
duty to state reasons for its decisions.

In addition, the contested decision disregarded the applicant's
right to protection of his personal data, the duty to have regard
to the interests of officials and the principle of good adminis-
tration.

for
Applicant
Community trade
mark:

Community trade
mark sought:

Fernando Rodrigues Carvalhais

Figurative mark ‘PERFIX’, application
number 1635515 for goods
falling
within Classes 6 (Profiles of metal and
accessories), 17 (Profiles of plastic and
rubber and their accessories, joints and
trim elements in plastic material) and
(non-metallic),
19 (building materials
edging,
joints,
and
(trim)
edging, (trim) and marble joints, edging,
(trim)
in
(not encompassed by other
general
classes))

and joints

coverings

ceramic

for

Proprietor of mark
or sign cited in the
opposition
proceedings:

Mark or sign cited
in opposition.

PROFILPAS, S.N.C.

(Community
Figurative mark ‘CERFIX’
trade mark number 587725) and word
mark ‘PROFIX’ (Community trade mark
number 771196)

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.