Case T-396/04: Action brought on 4 October 2004 by SOFFASS S.p.A. against the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM)
Date: 2005-01-08
Institutions: Court of First Instance
Subjects: EU trade mark, European Union Intellectual Property Office, action for annulment (EU), polishing and scouring preparations, toiletries, trade-mark law

8.1.2005

EN

Official Journal of the European Union

C 6/39

Action brought on 30 September 2004 by Dirk Klaas
against the European Parliament

Action brought on 4 October 2004 by SOFFASS S.p.A.
the Office for Harmonisation in the Internal
against
Market (Trade Marks and Designs) (OHIM)

(Case T-393/04)

(2005/C 6/76)

(Case T-396/04)

(2005/C 6/77)

(Language of the case: German)

(Language of the case: Italian)

An action against the European Parliament was brought before
the Court of First Instance of the European Communities on 30
September 2004, by Dirk Klaas, represented by R. Moos,
Rechtsanwalt.

The Applicant claims that the Court should:

— Declare void the annulment of 2 promotion points by the
Director General
for Personnel on 12 February 2004,
confirmed by the letter of rejection from the Secretary
General of
the European Parliament of 30 June 2004,
insofar as 2 promotion points, which had been awarded for
the period before 1999, were taken away from the appli-
cant;

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 4
October 2004 by SOFFASS S.p.A., represented by Vincenzo
Biliardo and Cristiano Bacchini, lawyers.

The other party to the proceedings before the appeal board
was: SODIPAN (Société en Commandite par Actions).

The applicant claims that the Court should:

— Annul the decision of the OHIM First Board of Appeal of

16 June 2004 in Case R-699/2003-1;

— Annul that letter in that respect and declare that the 2
promotion points are to be carried over to subsequent
years;

— Order OHIM to pay the costs.

— Order the defendant to pay the costs.

Pleas in law and main arguments:

Pleas in law and main arguments

The applicant is an official of the Parliament. He was promoted
to A6 with retrospective effect as of 1 January 1999. In the
course of the promotion procedure all the promotion points
earned by the applicant before 1999 were removed from him.
By way of grounds, the Parliament referred to the judgment of
the Court of Justice in Case T-30/02 Leonhardt v Parliament,
which, in its view, allowed the removal of points.

In support of his application the applicant argued that the tran-
sitional rule that all points earned before 1999 were to be
removed in the event of promotion, was in breach of Article
45 of the Staff Regulations. In the view of the applicant, that
rule was unnecessary, disproportionate and contrary to the
principle of equality. He also submitted that the present case
was not comparable to Case T-30/02.

Applicant
munity trade mark:

for

Com-

The applicant

Community trade mark
considered:

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

Figurative mark ‘NICKY’ – Appli-
cation No 1 315 985 for products
in Class 16 (Paper, cardboard and
goods made from these materials,
for
cleaning
purposes).

household

and

The French company SODIPAN
(Société
par
Actions).

Commandite

en

Mark or sign cited in
opposition.

Figurative French marks ‘NOKY’
(No 1 346 586) and ‘noky’ (No 1
400 192) for products in Class 16.

Decision of the Opposi-
tion Division:

Opposition dismissed.

C 6/40

EN

Official Journal of the European Union

8.1.2005

Decision of
of Appeal:

the Board

Pleas in law:

Annulment of
the Opposition
Division decision, the matter being
referred back to it for reconsidera-
tion.

Misapplication of Article 8(1)(b) of
Regulation (EC) No 40/94 (likeli-
hood of confusion).

Action brought on 7 October 2004 by Scandlines Sverige
AB against the Commission of the European Communities

(Case T-399/04)

(2005/C 6/78)

(Language of the case: English)

An action against the Commission of the European Commu-
nities was brought before the Court of First Instance of the
European Communities on 7 October 2004 by Scandlines
Sverige AB, Helsingborg, Sweden, represented by C. Vajda QC
and R. Azelius and K. Azelius, lawyers.

The applicant claims that the Court should:

— annul the Decision of the Commission of the European
Communities, of 23 July 2004, rejecting the applicant's
complaint of 2 July 1997;

— remit the case back to the Commission for re-examination

of the complaint in the light of the Court's judgment;

— order the Commission to indemnify the applicant for the
costs of these proceedings irrespective of the outcome.

Pleas in law and main arguments

The applicant is Swedish company whose main activity consists
in being the port agent of a ferry-operator. The applicant filed
a complaint with the Commission, against Helsingborgs Hamn
AB (HHAB), a company responsible for running the port in
Helsingborg in Sweden and for setting port charges. The appli-
cant considered that HHAB charged the applicant excessive
port charges, abusing its dominant position in breach of Article
82 EC. This complaint was rejected by the contested decision.

In support of its application the applicant contends that the
Commission erred in concluding that port charges to ferry-
operators were not excessive. According to the applicant the

Commission's cost/price analysis established that HHAB has
been making returns, on its ferry business, of over 100 % the
value of the equity employed in this business. The applicant
argues that such returns cannot be achieved in a competitive
market and are therefore excessive, unfair and abusive.
It
considers that in rejecting that conclusion the Commission
misapplied the term ‘economic value’ and failed to apply the
principle of proportionality or the correct burden of proof. It
the Commission wrongly rejected the
also contends that
comparison between prices charged to ferry-operators and
those charged to cargo-operators as well as the comparison
between prices charged at Helsingborg and those charged at
Elsinore, at the other end of the same route. The applicant also
challenges the Commission's finding that there was no price
discrimination in the meaning of Article 82 EC between ferry
and cargo operators. According to the applicant, the Commis-
sion wrongly concluded that services provided by HHAB to
those two branches are not equivalent and that there was no
competitive disadvantage to the ferry operators.

inadequate and contradictory and for

The applicant further claims that the Commission's reasoning is
wrong,
reason
violates Article 253 EC. It also invokes a breach of its right to
be heard under Article 6 of Regulation 2842/98 and contends
that the Commission failed to carry out a proper investigation
within a reasonable time, thereby breaching Article 10 EC,
Article 6 of the European Convention of Human Rights and
the principle that the Commission must act within a reasonable
time.

this

Action brought on 8 October 2004 by Nadine Schmit
against the Commission of the European Communities

(Case T-419/04)

(2005/C 6/79)

(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 8 October 2004 by Nadine Schmit,
represented by Pierre Paul Van
residing in Ispra (Italy),
Gehuchten and Pierre Jadoul,
lawyers, with an address for
service in Luxembourg.