Case T-423/04: Action brought on 8 October 2004 by Bunker & BKR, S.L. against the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM)
Date: 2004-12-18
Institutions: Court of First Instance
Subjects: EU trade mark, European Union Intellectual Property Office, action for annulment (EU), clothing industry, footwear industry, trade-mark law

C 314/24

EN

Official Journal of the European Union

18.12.2004

Pleas in law and main arguments

Pleas in law and main arguments:

Applicant for the Com-
munity trade mark:

The applicant

The trade mark applied
for:

Word mark ‘Caipi’
for goods in
Class 33 (alcoholic beverages (not
including beer)), application No
2 655 967

Decision of
iner:

the exam-

Refusal
applied for

to register

the mark

Decision of
of Appeal:

the Board

Dismissal of the appeal

No

(ERDF

94.02.10.036

By the contested decision, the Commission reduced the Com-
munity assistance from the ERDF Structural Funds for the
Operational Programme RESIDER II North Rhine-Westphalia
1995-1999
ARINCO
No 94.DE.16.051) to EUR 72 794 851.67 and refused to pay
the German authorities the balance of EUR 2 268 988.33. The
reason for the reduction is that, compared with the indicative
financial plan, recourse to the programme was lower with
respect to certain measures and higher with respect to others.
A balance between the more and less heavily used measures
was not achieved within the individual priorities of
the
programme but rather at the level of the programme as a
whole.

/

Grounds of claim:

Infringement of Article 7(1)(b) and
(c) and of Article 12 of Regulation
(EC) No 40/94.
(1) Wrongful
failure to take account of earlier
national registrations.

In support of its action, the applicant first of all observes that,
under Article 24 of Regulation No 4253/88, (1) Community
assistance may be reduced only if there has been a significant
change affecting the nature or conditions of the operation or
measure. In the applicant's view, the adjustments made do not
constitute such a significant change.

(1) Council Regulation (EC) No 40/94 of 20 December 1993 on the

Community trade mark (OJ 1994 L 11, p. 1).

Action brought on 11 October 2004 by the Federal
Republic of Germany against the Commission of the Euro-
pean Communities

(Case T-414/04)

(2004/C 314/57)

(Language of the case: German)

An action against the Commission of the European Commu-
nities was brought before the Court of First Instance of the
European Communities on 11 October 2004 by the Federal
Republic of Germany, represented by C.-D. Quassowski and C.
von Donat, lawyer.

The applicant claims that the Court should:

— annul the Commission decision notified by letter of the
Directorate-General for Regional Policy of 9 August 2004
in so far as the Community assistance from the European
Regional Development
the Operational
Fund
Programme RESIDER II North Rhine-Westphalia 1995-
1999 (ERDF No 94.02.10.036 / ARINCO No 94.DE.16.051)
was reduced to EUR 72 794 851.67 and payment to the
German authorities of the balance of EUR 2 268 988.33
was refused;

for

— order the Commission to pay the costs.

If those adjustments are to be regarded as a significant change,
the applicant submits that the Commission gave prior approval
in its ‘Guidelines on the closure of operational programmes
(1994-1999) of the Structural Funds’ (SEC(1999) 1316).

The applicant also complains that the Commission abused its
discretion by failing to even exercise it and that there are errors
in the reasoning for the contested decision.

(1) Council Regulation (EEC) No 4253/88 of 19 December 1988,
laying down provisions for implementing Regulation (EEC) No
2052/88 as regards coordination of the activities of the different
Structural Funds between themselves and with the operations of the
European Investment Bank and the other existing financial instru-
ments (OJ 1988 L 374, p. 1).

Action brought on 8 October 2004 by Bunker & BKR, S.L.
the Office for Harmonisation in the Internal
against
Market (Trade Marks and Designs) (OHIM)

(Case T-423/04)

(2004/C 314/58)

(Language of the case: Spanish)

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
October 2004 by Bunker & BKR, S.L., established in Almansa
(Spain), represented by José Enrique Astiz Suárez, lawyer.

18.12.2004

EN

Official Journal of the European Union

C 314/25

The applicant claims that the Court should:

Action brought on 15 October 2004 by Angel Angelidis
against European Parliament

— vary the decision of the Fourth Board of Appeal of the
Office for Harmonisation in the Internal Market
(Trade
Marks and Designs) (OHIM) of 30 June 2004 in Case R
458/2002-4 as regards its findings as to the similarity of
the signs and the goods, ordering that the opposition be
rejected and the application granted in respect of all the
goods for which protection is sought; and

— in the alternative, annul the decision and refer the case back
to the opposition division in order that a new and accurate
comparison of the remaining signs may be carried out,
regard being had to the visual and phonetic differences
between ‘BOOTS & SHOES B.K.R. MADE IN SPAIN’ and
‘BK RODS’ and to their compatibility on the market, there
being no risk that consumers associate them as regards the
origin and quality of the goods which they designate.

Pleas in law and main arguments:

Applicant
munity trade mark:

for

Com-

Community trade mark
sought:

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

Mark or sign cited in
opposition:

Decision of the Opposi-
tion Division:

BUNKER,

S.A.
CALZADOS
(ownership in the application was
subsequently transferred to the
applicant).

Figurative mark comprising the
initials ‘BKR’ set
in a diamond
shape, with the words ‘Boots &
Shoes — Made in Spain’ — Appli-
cation No 649.756 for goods in
classes 18 and 25 and services in
class 39.

MARINE STOCK LIMITED.

(No 149.254)

trade marks,
Various national
including the Austrian word mark
‘BK RODS’
for
goods in class 25 (clothing and
footwear). The opposition was
directed against all the goods and
services
covered by the Com-
munity trade-mark application at
issue in the proceedings.

Opposition upheld in respect of
the goods in class 25 and rejected
in respect of goods in class 18 and
services in class 39.

(Case T-424/04)

(2004/C 314/59)

(Language of the case: French)

An action against the European Parliament was brought before
the Court of First Instance of the European Communities on 15
October 2004 by Angel Angelidis, residing in Luxembourg,
represented by E. Boigelot, lawyer.

The applicant claims that the Court should:

— Annul the Parliament's decision of 16 July 2004 rejecting

the complaint lodged by the applicant;

— Annul the applicant's staff report for 2002;

— Order the Parliament to pay the applicant compensation for
non-material harm, evaluated on an equitable basis at
EUR 20,000, owing to the various
faults
committed at various levels in the establishment of his staff
reports and owing to the significant delay in definitively
establishing those reports;

substantial

— Order the defendant to pay the costs.

Pleas in law and main arguments

The pleas in law on which the applicant relies are identical to
those in Case T-416/03, (1) brought by the same applicant.

Decision of
of Appeal:

the Board

Dismissed the appeal.

(1) OJ C 59 of 06.03.2004, p. 25.