Case T-204/04: Action brought on 7 June 2004 by Indorata-Servicos e Gestao Lda against the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM)
Date: 2004-08-28
Institutions: Court of First Instance
Subjects: EU trade mark, European Union Intellectual Property Office, action for annulment (EU), cosmetics industry, service, toiletries, trade-mark law

28.8.2004

EN

Official Journal of the European Union

C 217/25

Pleas in law and main arguments:

In the contested decision, the Commission initiated the proce-
dure under Article 88(2) of
the Treaty declaring that aid
granted by Article 5 of Regional Law 22/2000, providing for
‘interventions in favour of breeders to confront the epizootic
disease of blue tongue’, was incompatible with the common
interventions in
market. That
favour of breeders who had suffered the negative effects of blue
tongue.

law provided for a series of

In support of its claims the applicant pleads the following
grounds:

— infringement of essential procedural

requirements: The
Commission's preliminary investigations for assessing the
compatibility of the aid were insufficient in that they did
not take account of information available in the notification
report and subsequently supplemented by the Region of
Sardinia, and in particular of the following circumstances:

— the aid is not intended for processing undertakings but
is a necessary additional compensation for producers'
loss of
income resulting from higher fixed costs of
Cooperatives when distributing net proceeds;

— the causal relationship between the epizootic disease
and the reduction in grants cannot be proven in abstract
terms but is dependent on the practical implementation
of the aid rules, which are structured in such a way as
to exclude the allocation of aid on grounds other than
those dependent on blue tongue. The hypothetical
grounds referred to for the reduction in grants are insuf-
ficient and are contrary to facts known to the European
Commission.

— the cooperatives receiving the aid do not have any flex-

ibility to access alternative sources of supply.

— infringement of the provisions of the EC Treaty and the
principles of law relating to its application, in so far as:

— the Commission infringed the principle of effectiveness
by excluding the application of Article 87(2)(b), partly
because that provision was not invoked by the Italian
authorities. In accordance with that principle, the appli-
cant argues, the Commission should have given suffi-
cient reasons for not applying it, the Italian authorities'
failure to invoke it being insufficient.

— the Commission infringed Article 87(3)(c) by over-
looking the fact that the measure now alleged to be
incompatible with the common market is identical with
the measures approved by the Commission in Decision
SG(01) D/285817 of 2 February 2001, concerning
Article 3 of Regional Law 22/2000.

Action brought on 7 June 2004 by Indorata-Servicos e
Gestao Lda against the Office for Harmonisation in the
Internal Market (Trade Marks and Designs) (OHIM)

(Case T-204/04)

(2004/C 217/46)

(Language of the case: 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 7 June
represented by
2004 by Indorata-Servicos e Gestao Lda,
T Wallentin, lawyer.

The applicant claims that the Court should:

— annul the contested rejection of its application for a Com-
munity trade mark and order the Office for Harmonisation
in the Internal Market to register the sign ‘HAIRTRANSFER’
as a Community trade mark for the remaining goods and
services which remain the subject of dispute also and to
publish that registration;

Pleas in law and main arguments:

Community trade mark
sought:

The word mark ‘HAIRTRANSFER’
— Application No 2 619 039.

Goods or services:

artificial

Goods and services in Classes 8,
22, 41 and 44 (inter alia, electric
and non-electric depilation appli-
and real hair,
ances,
provision of training, in particular
of
arranging
and
further-training
and
hygienic and beauty care, in par-
ticular hair care and treatment).

conducting
seminars

Decision
before
Appeal:

contested
the Board of

Refusal to register by the exam-
iner.

Decision of
of Appeal:

Pleas in law:

the Board

Dismissal of the appeal.

The mark sought
is distinctive
within the meaning of Article
7(1)(b) of Regulation (EC) No 40/
94;

The mark sought is not exclusively
descriptive within the meaning of
Article 7(1)(c) of Regulation (EC)
No 40/94.