Judgment of the Court of First Instance of 6 October 2004 in Case T-356/02: Vitakraft-Werke Wührmann & Sohn GmbH & Co. KG v Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) (Community trade mark — Opposition proceedings — Earlier figurative mark including the verbal element ‘Krafft’ — Application for Community word mark VITAKRAFT — Relative ground for refusal — Genuine use of the earlier mark — Similarity of the signs — Article 8(1)(b) of Regulation (EC) No 40/94 — Rule 22(2) of Regulation (EC) No 2868/95)
Date: 2004-12-18
Institutions: Court of First Instance
Subjects: EU trade mark, European Union Intellectual Property Office, action for annulment (EU), chemical product, trade-mark law

18.12.2004

EN

Official Journal of the European Union

C 314/17

JUDGMENT OF THE COURT OF FIRST INSTANCE

JUDGMENT OF THE COURT OF FIRST INSTANCE

of 6 October 2004

of 6 October 2004

in Case T-294/02: Miguel Vicente-Nuñez v Commission of
the European Communities (1)

(Compliance with a judgment of the Court of First Instance
— Decision on promotion — Seniority in grade — Date of
taking effect)

in Case T-356/02: Vitakraft-Werke Wührmann & Sohn
GmbH & Co. KG v Office for Harmonisation in the
Internal Market (Trade Marks and Designs) (OHIM) (1)

(Community trade mark — Opposition proceedings —
Earlier figurative mark including the verbal element ‘Krafft’
— Application for Community word mark VITAKRAFT —
Relative ground for refusal — Genuine use of the earlier
mark — Similarity of the signs — Article 8(1)(b) of Regu-
lation (EC) No 40/94 — Rule 22(2) of Regulation (EC) No
2868/95)

(2004/C 314/43)

(Language of the case: French)

(2004/C 314/44)

(Language of the case: German)

the European Communities,

represented by M.-A. Lucas,

In Case T-258/01: Miguel Vicente-Nuñez, an official of the
residing in
Commission of
Kraainem (Belgium),
lawyer,
against Commission of the European Communities (Agents:
C. Berardis-Kayser and L. Lozano Palacios, with an address for
service in Luxembourg) — application for annulment of the
Commission's decision promoting the applicant to Grade A 5,
Step 3 under the 1998 procedure, adopted in order to comply
with the judgment delivered by the Court of First Instance on 9
March 2000 in Case T-10/99, in so far as it limits its effect to
1 April 2000, and, second, a claim for damages, the Court of
First Instance (Third Chamber), composed of J Azizi, President,
M. Jaeger and F. Dehousse, Judges; H. Jung, Registrar, gave a
judgment on 6 October 2004, in which it:

1. Annuls the Commission's decision of 11 June 2002, in so far as
it does not have the effect of replacing Mr Vicente-Nuñez in a
situation comparable, from the point of view of his seniority in
grade, to the situation in which he would have been had he been
promoted to Grade A 5 on 1 April 1998;

2. Dismisses the remainder of the application;

3. Orders the Commission to pay the costs.

(1) OJ No C 289 of 23.11.2002

(Trade Marks and Designs)

In Case T-356/02: Vitakraft-Werke Wührmann & Sohn
GmbH & Co. KG, established in Bremen (Germany), repre-
sented by U. Sander, lawyer, against Office for Harmonisation
in the Internal Market
(OHIM)
(Agents: A. Apostolakis and G. Schneider), the other party to
the proceedings before the OHIM Board of Appeal and inter-
vener before the Court of First Instance being Krafft, SA, estab-
lished in Andoain (Spain), represented by P. Koch Moreno,
lawyer — ACTION seeking the annulment of the decision of
the Fourth Board of Appeal of OHIM of 4 September 2002
(Joined Cases R 506/2000-4 and R 581/2000-4) in opposition
proceedings between Krafft, SA, and Vitakraft-Werke Wühr-
mann & Sohn GmbH & Co. KG — the Court of First Instance
(Second Chamber), composed of J. Pirrung, President, A.W.H.
Meij and N.J. Forwood, Judges; B. Pastor, Deputy Registrar, for
the Registrar, has given a judgment on 6 October 2004, in
which it:

1. Annuls the decision of the Fourth Board of Appeal of the Office
for Harmonisation in the Internal Market
(Trade Marks and
Designs) of 4 September 2002 (Joined Cases R 506/2000-4 and
R 581/2000-4) in so far as it allowed the intervener's appeal
before the Board of Appeal concerning the goods ‘industrial oils
and greases; lubricants; fuels (including motor spirit) and illumi-
nants’ (Class 4) and the goods ‘building materials (not metallic);
non-metallic rigid pipes for building, asphalt, pitch and bitumen’
(Class 19) contained in the Community trade mark application;

2. Dismisses the remainder of the action;

3. Orders the parties to bear their own costs.

(1) OJ C 55, 8.3.2003.