Case T-163/04: Action brought on 30 April 2004 by M. Schäfer against the Office for Harmonisation in the Internal Market (Trade Marks and Designs)
Date: 2004-10-09
Institutions: Court of First Instance
Subjects: EU trade mark, European Union Intellectual Property Office, appeal, prepared foodstuff, trade-mark law

C 251/18

EN

Official Journal of the European Union

9.10.2004

ORDER OF THE COURT OF FIRST INSTANCE

of 9 July 2004

in Case T-132/04: André Bonnet v Court of Justice of the
European Communities (1)

(Officials — Prior administrative procedure — Manifest
inadmissibility)

(2004/C 251/34)

(Language of the case: French)

In Case T-132/04: André Bonnet, residing in Saint-Pierre-de-
Vassols (France), represented by H. de Lepinau, lawyer, with an
address for service in Luxembourg v Court of Justice of the
European Communities (Agent: M. Schauss, with an address for
service in Luxembourg) — action for, first, annulment of the
decisions of 11 February and 4 March 2004 terminating,
in
respect of the applicant, the procedure for recruitment to the
post of lecteur d'arrêts in the cabinet of the President of the
Court of Justice and annulment of the decision to appoint
another candidate to that post, and, second, damages — the
Court of First Instance (Second Chamber), composed of A. W.
H. Meij, acting for the President, N. J. Forwood and I. Peliká-
nová, Judges; H. Jung, Registrar, made an order on 9 July 2004,
the operative part of which is as follows:

(1) The action is dismissed.

(2) Each party is ordered to bear its own costs.

(1) OJ No C 168 of 26.6.2004.

Action brought on 30 April 2004 by M. Schäfer against
the Office for Harmonisation in the Internal Market
(Trade Marks and Designs)

(Case T-163/04)

(2004/C 251/35)

(Language of the case to be determined pursuant to Article 131(2) of
the Rules of Procedure language in which the application was
submitted: 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 30
April 2004 by M. Schäfer, Bergisch-Gladbach (Germany), repre-
sented by I. Reese, lawyer.

KoKa Verwaltung GmbH, Hamburg (Germany), was also a
party to the proceedings before the Board of Appeal.

The applicant claims that the Court should:

— vary the decision of the Second Board of Appeal of the
Office for Harmonisation in the Internal Market of 12
December 2003 so as to order the Office to pay the costs
incurred by the applicant in the proceedings for restitutio
in integrum and in the appeal proceedings;

— in the alternative, vary the decision of the Second Board of
Appeal of the Office for Harmonisation in the Internal
Market so as to order KoKa Verwaltung GmbH to pay the
costs incurred by the applicant in the proceedings for resti-
tutio in integrum and in the appeal proceedings.

Pleas in law and main arguments:

On 26 December 2000, the applicant filed with the Office for
Harmonisation in the Internal Market an application for regis-
tration of the figurative mark ‘Mike's Meals on Wheels’ as a
Community trade mark for services in Classes 35 and 42.
Relying on its earlier German marks, namely the figurative
mark ‘MIKE'S SANDWICH MARKET’ and the word mark
‘MIKE’, KoKa Verwaltung GmbH entered opposition on the
ground of a likelihood of confusion.

The Opposition Division rejected the opposition and ordered
the opponent to pay the costs. The opponent objected to that
decision and applied for restitutio in integrum. It also brought
an appeal seeking to have the decision annulled in its entirety
and the proceedings stayed pending the ruling on the applica-
tion for restitutio in integrum.

By decision of 16 June 2003, the Opposition Division granted
the application for restitutio in integrum and resumed the
opposition proceedings.

By the contested decision, the Board of Appeal held that the
appeal had become devoid of purpose. The appeal proceedings
were therefore discontinued and the appeal fee was reimbursed.
The Board of Appeal also ordered each of the parties to bear
the costs incurred by them in the appeal proceedings.

The action brought by the applicant challenges that ruling on
costs. He claims that the Office failed to exercise properly the
discretion enjoyed by it under Article 81(4) of Regulation (EC)
No 40/94 in the event that the proceedings are discontinued.
The applicant was in no way responsible for the initiation of
and need to conduct appeal proceedings. The appeal proceed-
ings were the result of, first, the incorrect postcode in the Offi-
ce's letterhead and, secondly, the appellant's exhaustion of the
entire period prescribed for the submission of evidence of use.
The applicant had no control over either of those two causes of
the proceedings for restitutio in integrum and the appeal
proceedings. Under Article 81 of Regulation (EC) No 40/94,
the ruling on costs is a matter of unfettered discretion. That
unfettered discretion includes the possibility of ordering the
Office to pay the costs. Moreover, it is an infringement of the
applicant's fundamental rights to deny him compensation for
his costs and trouble.