Case T-366/04: Action brought on 8 September 2004 by Hensotherm AB against the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM)
Date: 2005-02-05
Institutions: Court of First Instance
Subjects: EU trade mark, European Union Intellectual Property Office, action for annulment (EU), insulator, paints and varnishes, trade-mark law

C 31/22

EN

Official Journal of the European Union

5.2.2005

1. The action is dismissed as inadmissible.

2. The applicant and the Commission shall bear their own costs

relating to the main action.

3. The applicant shall bear its own costs and pay those of
Commission relating to the proceedings for interim measures.

the

4. The French Republic shall bear its own costs.

(1) OJ C 213 of 6.9.2003.

Action brought on 8 September 2004 by Hensotherm AB
the Office for Harmonisation in the Internal
against
Market (Trade Marks and Designs) (OHIM)

(Case T-366/04)

(2005/C 31/45)

(Language of the case: Swedish)

ORDER OF THE PRESIDENT OF THE COURT OF FIRST
INSTANCE

of 10 November 2004

in Case T-316/04: R Wam SpA v Commission of the Euro-
pean Communities

(State aid — Loans at reduced rates intended to enable an
undertaking to become established in certain non-member
countries — Obligation to recover — Application for interim
measures — Suspension of operation — Urgency — None)

(2005/C 31/44)

(Language of the case: Italian)

In Case T-316/04 R: Wam SpA, established in Cavezzo di
lawyer, against the
Modena (Italy), represented by E. Giliani,
Commission of
the European Communities (Agents: V. Di
Bucci and E. Righini, with an address for service in Luxem-
bourg) – application for
the operation of
Commission Decision C(2004) 1812 final of 19 May 2004 on
State aid C-4/2003 (ex NN 102/2002) – the President of the
Court of First Instance made an order on 10 November 2004,
the operative part of which is as follows:

suspension of

1. The application for interim relief is dismissed.

2. The costs are reserved.

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 8
September 2004 by Hensotherm AB, Trelleborg (Sweden),
represented by Stefan Hallbäck, lawyer.

Rudolf Hensel GmbH, Börnsen (Germany), was also a party to
the proceedings before the Board of Appeal.

The applicant claims that the Court should:

— refer the case back to the Board of Appeal of the Office for
Harmonisation for examination of the substance of the
applicant's appeal against the decision of the Cancellation
Division of 11 September 2003 on the ground of breach of
essential procedural requirements;

— in the alternative, examine the appeal against the Cancella-
tion Division's decision of 11 September 2003 and the
Board of Appeal's decision of 12 July 2004 and dismiss
Rudolf Hensel GmbH's application for a declaration of inva-
lidity of Community trade mark No 357 863;

— order the defendant to pay the costs.

Pleas in law and main arguments:

Registered Community
to
trade mark subject
an
for
application
declaration of invalidity:

Figurative mark ‘HENSOTHERM’
for goods in Classes 2 and 17
(paints,
sealing
insulation and
material) – Community trade mark
No 357 863

Proprietor
munity trade mark:

of

Com-

The applicant

Party seeking a declara-
tion of invalidity:

Rudolf Hensel GmbH

5.2.2005

EN

Official Journal of the European Union

C 31/23

Trade mark held by the
party seeking a declara-
tion of invalidity:

word

National
mark
‘HENSOTHERM’ (No 213 672) for
goods in Class 2

the European Central Bank for its refinancing operations,
increased by two percentage points;

Decision of the Cancel-
lation Division:

Declaration of invalidity of Com-
munity
mark
trade
'HENSOTHERM' on the ground of
the risk of confusion with the
earlier
trade mark
‘HENSOTHERM’ (No 213 672)

national

— order the Council to pay the applicant compensation equal
to 100,000 Euros for substantial non-contractual and moral
damage suffered by the applicant throughout the adminis-
trative proceedings preceding the application and through
the applicant's various oral and written communications
with the Council's services; and

Decision of
of Appeal:

Pleas in law:

the Board

Dismissal of the appeal

Breach of Articles 52(1)(a) and 78
of Regulation (EC) No 40/94

— order that the costs of and occasioned by these proceedings

be borne by the Council.

Pleas in law and main arguments

The applicant is a former official of the Council, receiving an
invalidity pension as of 1 May 2003. After her retirement the
applicant notified the Council that she had fixed her permanent
residence in the United Kingdom and, on this information, the
for that
initially applied the correction coefficient
Council
country on the applicant's pension. However, considering that
the applicant had provided contradictory information on her
place of residence, the Council suspended the application of the
correction coefficient for the United Kingdom, applying first
the one for Belgium and later that of Greece, where the appli-
cant's initial place of origin was situated. The applicant filed a
complaint, which was rejected by the contested decision of 16
July 2004.

In support of her application the applicant submits that she
permanently and lawfully resides in the United Kingdom from
1 May 2003 onwards. She considers that by finding otherwise
the Council violated Article 82 paragraph 1 of the Staff Regula-
tions and committed a manifest error of assessment. She also
submits that the Council failed to provide sufficient reasoning
for its decision and infringed the general principle of legal
certainty by reversing the legitimate expectations of the appli-
cant. She further contends that the Council violated the prin-
ciple of good administration and its duty of solicitude towards
the applicant submits that she was
the applicant. Finally,
substantially hurt by the overall attitude of
the defendant
towards her and by the fact that her daughter had to abandon
her doctoral studies in Greece in order to move to the United
Kingdom and work there to provide the applicant with finan-
cial support. The applicant requests the court to grant her
compensation for this moral damage.

Action brought on 18 October 2004 by Anna Kontouli
against the Council of the European Union

(Case T-416/04)

(2005/C 31/46)

(Language of the case: English)

An action against the Council of the European Union was
brought before the Court of First Instance of the European
Communities on 18 October 2004 by Anna Kontouli, London,
(United Kingdom), represented by V. Arkitidis, lawyer, with an
address for service in Luxembourg.

The applicant claims that the Court should:

— annul the Council's decision of 16 July 2004 rejecting the
applicant's complaint submitted pursuant
to Article 90
paragraph 2 of the Staff Regulations, concerning the setting
of the appropriate correction coefficient of her pension;

— order the Council to pay the applicant an amount equal to
the balance between the amounts of pension paid to the
applicant thus far and the amounts of pension that should
have been paid to the applicant, should the correction coef-
ficient of the applicant's pension have been set by reference
to the United Kingdom since the applicant's right
to
pension was established on 1 May 2003; this balance to be
increased by default interest equal to the interest rate set by