Case T-278/04: Action brought on 9 July 2004 by Jabones Pardo, S.A. against the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM)
Date: 2004-10-09
Institutions: Court of First Instance
Subjects: EU trade mark, European Union Intellectual Property Office, action for annulment (EU), cosmetic product, pharmaceutical product, toiletries, trade-mark law

9.10.2004

EN

Official Journal of the European Union

C 251/23

Decision
before
Appeal:

contested
the Board of

Refusal to register by the exam-
iner.

Decision of
of Appeal:

Pleas in law:

the Board

Appeal dismissed.

The applicant has shown that the
shape of the lighter in respect of
which the application for registra-
tion as a Community trade mark
was made is widely recognised by
consumers as belonging to it.

The applicant has established that
the shape of the BIC lighter had
acquired a distinctive
character
within the meaning of Article 7 of
Regulation (EC) No 40/94.

(1) Probably R 469/2003-4.

Action brought on 7 July 2004 by Brandt Industries
against the Commission of the European Communities

(Case T-273/04)

(2004/C 251/42)

(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
European Communities on 7 July 2004 by Brandt Industries,
established in Rueil-Malmaison (France), represented by Niels
Dejean and Christophe Delrieu, lawyers.

The applicant claims that the Court should:

— annul the Commission decision of 16 December 2003 on
the aid scheme implemented by France for the takeover of
firms in difficulty on the grounds that it does not state
adequate reasons as required under Article 253 EC and that
is contrary to Article 14 of Regulation (EC) No
it
659/1999 (1) of 22 March 1999;

— order the Commission to pay the costs.

Pleas in law and main arguments

By the decision of 16 December 2003 the Commission
concluded that the scheme provided for in Article 44 septies of
the Code Général des Impôts (French General Taxation Code)
constituted a State aid incompatible with the common market,
without prejudice to de minimis aid and aid compatible with
the guidelines on aid for regional purposes or with the exemp-

tion rule regarding aid to small and medium-sized undertak-
ings. It ordered France to recover the aid granted.

The applicant contests the Commission decision.
It submits
that the decision should be annulled on the ground that the
decision does not show adequate reasons in light of the require-
ments of Article 253 EC. In the decision, the Commission itself
recognised that it had no specific information on the firms
which automatically benefited from the scheme under Article
44 septies of the Code Général des Impôts.

Furthermore, the applicant submits that the contested decision
is in breach of Article 14 of Regulation (EC) No 659/1999. The
Commission did not take account of the fact that the tax aid to
companies formed to take over firms in difficulty had the effect
of bringing those companies to propose a higher price for the
assets than that which they would have offered if that aid had
not existed. Consequently, all or part of the aid was transferred,
by way of an increase in the repurchase price of those assets,
to the creditors of the firm in receivership, so that the takeover
companies could not be regarded as the actual beneficiaries of
the entirety of the aid. Reimbursement of the aid received by
the takeover companies is not a measure necessary for the
return of the competition situation to what it was before the
grant of the aid, but, on the contrary, would place the takeover
companies in a less favourable position than that in which they
would have been without the aid, so that it contravenes the
principles of fair competition and of proportionality.

(1) Council Regulation (EC) No 659/1999 of 22 March 1999 laying
down detailed rules for the application of Article [88] of the EC
Treaty (OJ L 83, p. 1).

Action brought on 9 July 2004 by Jabones Pardo, S.A.
the Office for Harmonisation in the Internal
against
Market (Trade Marks and Designs) (OHIM)

(Case T-278/04)

(2004/C 251/43)

(Language of the case: Spanish)

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 9 July
2004 by Jabones Pardo, S.A., established in Madrid, represented
by José Enrique Astiz Suárez, of the Madrid Bar.

The applicant claims that the Court should:

— vary the findings of the contested decision as regards the
similarity of the signs and the goods, ordering that the
opposition be admitted and the application refused in
respect of goods in classes 3 and 5; and

C 251/24

EN

Official Journal of the European Union

9.10.2004

— annul

the decision in order that a new and accurate
comparison of the signs and goods which they identify may
be carried out, regard being had to the high degree of
visual and phonetic similarity between ‘YUPI’ and ‘YUKI’, as
well as the fact that many of the goods which they desig-
nate are identical or almost identical.

Pleas in law and main arguments:

Applicant
munity trade mark:

for

Com-

QUIMI ROMAR S.L.

Community trade mark
sought:

Word mark ‘YUKI’ — Application
No 1. 353.515 for
in
classes 3, 5 and 28.

goods

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

The applicant.

The Spanish word mark ‘YUPI’
(No 246.715) for goods in class 3
(all
types of perfumery, waxes,
essential oils and dentifrices).

directed:

Opposition upheld in part
in
respect of the goods against which
‘soaps,
it was
perfumery,
oils,
cosmetics, hair lotions, dentifrices’
(class 3) and ‘pharmaceutical and
sanitary preparations’ (class 5)

i.e.
essential

for

Upheld the appeal brought by the
applicant
trade mark,
the
annulled the contested decision in
so far as it upheld the opposition
‘soaps, perfumery,
in respect of
hair
essential
oils,
(class 3) and
lotions, dentifrices’
‘pharmaceutical
sanitary
preparations’ (class 5) and rejected
the case of the opposing party.

cosmetics,

and

Pleas in law:

Incorrect interpretation of Article
8(1)(b) of Regulation (EC) No
40/94.

Action brought on 9 July 2004 by the Italian Republic
against the Commission of the European Communities

(Case T-282/04)

(2004/C 251/44)

(Language of the case: Italian)

An action against the Commission of the European Commu-
nities was brought before the Court of First Instance of the

European Communities on 9 July 2004 by the Italian Republic,
represented by Gianni De Bellis, avvocato dello Stato.

The applicant claims that the Court should:

— annul Commission Decision C(2004) 1706 final of 24
April 2004 ‘which excludes from Community financing
certain expenditure incurred by the Member States in
respect of the Guarantee section of the European Agri-
cultural Guidance and Guarantee Fund (EAGGF)’ in part in
so far as it

— makes a specific adjustment of EUR 19 058 682 for Rural
Development — Measure (b) ‘Settlement of Young Farmers’
of the Rural Development Programme for the Region of
Tuscany

— makes a flat-rate adjustment of 2 % of

the sum of
EUR 2 758 501 relating to the supply of food aid for the
needy

— order the Commission of the European Communities to

pay the costs.

Pleas in law and main arguments:

The expenditure excluded from Community financing by the
contested decision, as regards the applicant, relates to the
‘Settlement of Young Farmers’ measure provided for in the
document on the planning of rural development in the Region
of Tuscany, approved by Decision C(2000) 2510 of 7
September 2000, and the flat-rate adjustment of 2 % applied to
the supply of food aid for the needy which, according to the
Commission, does not offer a system of checks with sufficient
safeguards.

In support of its claim, the applicant pleads:

— As regards the ‘Settlement of Young Farmers’ measure,
infringement of Articles 2 and 3 of Council Regulation
(EEC) No 729/70 (1), of Articles 35 and 37 of Council Regu-
lation (EC) No 1750/99 (2), of Article 2(1) of Council Regu-
lation (EC, Euratom) No 2988/95 (3), as well as of the prin-
ciples concerning financial adjustments.

— As regards the supply of food aid for the needy, the infrin-
gement of Articles 2 and 3 of Regulation (EC) No 729/70,
already cited.

(1) Regulation (EEC) No 729/70 of the Council of 21 April 1970 on
the financing of the common agricultural policy (OJ, English Special
Edition, Series II Chapter 1970(I), p. 218).

(2) Commission Regulation (EC) No 1750/1999 of 23 July 1999 laying
down detailed rules for the application of Council Regulation (EC)
No 1257/1999 on support for rural development from the Euro-
pean Agricultural Guidance and Guarantee Fund (EAGGF) (OJ L 214
of 13.8.1999, p. 31).

(3) Council Regulation (EC, Euratom) No 2988/95 of 18 December
1995 on the protection of the European Communities' financial
interests (OJ L 312 of 23.12.1995, p. 1).