Case T-383/04: Action brought on 22 September 2004 by Erich Drazdansky 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), beverage, trade-mark law

18.12.2004

EN

Official Journal of the European Union

C 314/21

Another part of the expenditure excluded concerns expenditure
for animal premiums. The Hellenic Republic asks that
the
contested decision be annulled and on that limb it is main-
tained that the Commission erred as to the facts, wrongly
assessed the factual circumstances, ignored crucial evidence and
gave erroneous reasons for its decision. It also alleges infringe-
ment of the principle of proportionality.

(1) Official Journal L 250 of 24.7.2004, p. 21.
(2) Regulation (EEC) No 729/70 of the Council of 21 April 1970 on
the financing of the common agricultural policy (OJ, English Special
Edition 1970 (I), p. 218).

(3) Council Regulation (EC) No 2201/96 of 28 October 1996 on the
common organisation of the markets in processed fruit and vege-
table products (OJ L 297, 21.11.1996, p. 29).

(4) Commission Regulation (EC) No 504/97 of 19 March 1997 laying
down detailed rules for the application of Council Regulation (EC)
No 2201/96 as regards the system of production aid for products
processed from fruit and vegetables (OJ 1997 L 78, 20.03.1997, p.
14).

(5) Council Regulation (EC) No 1258/1999 of 17 May 1999 on the
the common agricultural policy (OJ L 160 of

financing of
26.06.1999, p. 103).

(6) Commission Regulation (EC) No 1663/95 of 7 July 1995 laying
down detailed rules for the application of Council Regulation (EEC)
No 729/70 regarding the procedure for the clearance of
the
accounts of the EAGGF Guarantee Section (OJ L 158 of 8.7.1995,
p. 6).

Action brought on 22 September 2004 by Orsay GmbH
the Office for Harmonisation in the Internal
against
Market (Trade Marks and Designs) (OHIM)

(Case T-378/04)

(2004/C 314/52)

(Language of the case: German)

— declare that the Community trade mark ‘Orsay’ sought by
application No 1 042 605 is to be registered by OHIM for
the goods ‘clothing, boots, shoes and slippers; headgear’ in
Class 25;

— order OHIM to pay the costs.

Pleas in law and main arguments:

Applicant
munity trade mark:

for

Com-

The applicant

Community trade mark
sought:

Figurative mark ‘Orsay’ for goods
in Class 23 (yarns and threads,
etc.), Class 24 (clothing etc.) and
Class 25 (headgear), application
No 1 042 605

Decision of the Opposi-
tion Division:

Refusal
applied for

to register

the mark

Decision of
of Appeal:

Pleas in law:

the Board

Dismissal of the appeal

Infringement of Article 8(1)(b) of
Regulation (EC) No 40/94 (1)

(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 22 September 2004 by Erich Draz-
the Office for Harmonisation in the
dansky against

Internal Market (Trade Marks and Designs) (OHIM)

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 22
September 2004 by Orsay GmbH, established in Willstätt
(Germany), represented by D. von Schultz, lawyer.

(Case T-383/04)

(2004/C 314/53)

The applicant claims that the Court should:

(Language of the case: German)

— annul the decision of the Fourth Board of Appeal of OHIM
of 15 June 2004 – R 909/2002-4 – Orsay (word/figurative
mark)/D'ORSAY (word/figurative mark)
and Decision
2562/2002 of the Opposition Division of OHIM of 28
the Community
August 2002 insofar as registration of
trade mark sought by application No 1 042 605 was
refused for the goods ‘clothing, boots, shoes and slippers;
headgear’, on the ground of Opposition No B 242 075;

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 22
September 2004 by Erich Drazdansky, resident
in Wiener
Neustadt (Austria), represented by M. Kadlicz, lawyer.

C 314/22

EN

Official Journal of the European Union

18.12.2004

The applicant claims that the Court should:

The applicant claims that the Court should:

— alter the decision of the Second Board of Appeal of the
Office
for Harmonisation of 23 July 2004 — R
1014/2001-2 so as to allow the appeal and refuse or reject
the opposition;

— annul the Commission's decisions not to enter the appli-
cant's name in a avourable position on either the list of
merit or the list of officials promoted to grade A4 in the
2003 promotion exercise;

— in the alternative, annul the decision of OHIM and require

it to reach a fresh decision on the appeal;

— order OHIM to pay the costs.

Pleas in law and main arguments:

Applicant
munity trade mark:

for

Com-

The applicant

— declare unlawful Article 12 of the general provisions for the
implementation DGE) of Article 45 of the Staff Regulations
in so far as it provides for the award of transitional priority
points at the rate of one point per year of seniority in grade
with a maximum of seven points and additional special
priority points within a limit of 150 % of the possibilities
for promotion in the previous exercise without
taking
account of the actual merits which officials have displayed
during the reference years;

— order the defendant to pay the costs.

Community trade mark
sought:

Word mark ‘Vitacan’ for goods in
Class 29 (milk drinks etc.), Class
30 (cocoa or chocolate drinks) and
Class 32 (fruit drinks etc.), applica-
tion No 452 284

Pleas in law and main arguments

Decision of the Opposi-
tion Division:

Refusal
applied for

to register

the mark

The applicant in these proceedings objects to the appointing
authority's refusal to promote him to A4 in the 2003 promo-
tion exercise.

Decision of
of Appeal:

Pleas in law:

the Board

Dismissal of the appeal

Infringement of Article 8(1)(b) of
Regulation No 40/94 (1)

In support of his claims, he alleges that there has been a breach
of Articles 43 and 45 of the Staff Regulations and also of the
principle of non-discrimination and the principle that an offi-
cial is entitled to reasonable career prospects.

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

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

Action brought on 28 September 2004 by Bernard Nonat
against Commission of the European Communities

(Case T-391/04)

(2004/C 314/54)

(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 28 September 2004 by Bernard
Nonat, residing in Brussels, represented by Sébastien Orlandi,
Albert Coolen, Jean-Noël Louis and Etienne Marchal, lawyers,
with an address for service in Luxembourg.

He states in that regard that the new procedures adopted by
the Commission for the assessment and promotion of officials
deprive officials of an assessment of their own merits. In his
specific case, and in application of Article 12(3b) of the DGE of
Article 45 of the Staff Regulations, he is deemed to have the
same merits, in terms of additional special priority points, as
officials in the same grade who were not proposed in the
previous exercise.

It is thus apparent that two different categories of officials in
terms of merit are treated in the same way, in breach of the
principle of non-discrimination and of Article 45 of the Staff
Regulations: first, officials who, beyond the limit of 150 % of
the possibilities of promotion for the 2002 promotion exercise,
were proposed for promotion in that exercise and, second, offi-
cials eligible for promotion in 2002 who were not proposed.

Likewise, the award of one transitional priority point per year
of seniority in grade has the effect, in breach of Article 45 of
the Staff Regulations, of enhancing the seniority in grade of
officials eligible for promotion without taking account of the
respective merits which they have displayed during the refer-
ence period.