Case T-465/04: Action brought on 25 November 2004 by European Dynamics SA against the Commission of the European Communities
Date: 2005-03-05
Institutions: Court of First Instance
Subjects: European Commission, action for annulment (EU), administration of the Institutions, award of contract, competition law, invitation to tender, services contract, software, tendering

C 57/26

EN

Official Journal of the European Union

5.3.2005

Action brought on 1 December 2004 by Imagination Tech-
nologies Ltd against the Office for Harmonisation in the
Internal Market (Trade Marks and Designs)

Decision of
of Appeal:

Pleas in law:

(Case T-461/04)

(2005/C 57/44)

(Language of the case: English)

the Board

Dismissal of the appeal.

Violation of Articles 7(1)(b) and
7(1)(c) of Council Regulation No
40/94.

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 1
December 2004 by Imagination Technologies Ltd, established
in Hertfordshire (United Kingdom), represented by M. Edenbor-
ough, Barrister, and P. Brownlow and N. Jenkins, Solicitors.

The applicant claims that the Court should:

— annul

the decision of

the second Board of Appeal No

108/2004-2;

— annul the decision of the Examination Division dated 12

September 2003;

— remit

the Community

application No
2 396 075 to the Office, or alternatively to the Board of
Appeal, for further examination;

trade mark

— order the Office to pay to the applicant the costs incurred
by the applicant in connection with this appeal and the
appeal before the Board of Appeal and the prosecution
before the Examination Division.

Pleas in law and main arguments

Community trade mark
concerned:

The word mark ‘PURE DIGITAL’
for goods and services in classes 9
and 38 (Electric and electronic
apparatus
for use with multi-
media entertaining systems, video
apparatus,
hardware,
computer
telecommunications
provision of
access to computer databases and
the internet, …) — application No
2 396 075

Decision of
iner:

the exam-

Refusal of the application.

Action brought on 25 November 2004 by European
Dynamics SA against the Commission of the European
Communities

(Case T-465/04)

(2005/C 57/45)

(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 25 November 2004 by European
Dynamics SA, Athens, Greece, represented by N. Korogian-
nakis, lawyer.

The applicant claims that the Court should:

— annul the Decision of the Commission (DG Fisheries), of 15
September 2004, evaluating the applicant's bid as not
successful and awarding the contract
to the incumbent
contractor;

— order the Commission to re-evaluate the tender submitted

by the applicant;

— order the Commission to pay the applicant's legal costs and
other costs and expenses incurred in connection with the
application, even if the application is rejected.

Pleas in law and main arguments

The applicant company filed a bid in response to the Commis-
sion's call for tenders FISH/2004/02 (1) for the provision of
linked to the information
computer and related services
for Fisheries. By the
systems of
contested decision this bid was rejected and the contract
awarded to another bidder, which was also the incumbent
contractor.

the Directorate - General

5.3.2005

EN

Official Journal of the European Union

C 57/27

In support of its application for annulment of that decision the
applicant claims first of all that the Commission violated the
principle of non-discrimination and of free competition. The
applicant considers that the Commission's decision to impose a
two month familiarisation period unfavourably discriminated
in favour of
for whom the familiarisation
period was obviously not necessary. In the same context the
applicant also contends that delivery of information to the
tenderers regarding the software application subject to the call
for tenders was insufficient whilst of course the incumbent had
unlimited access to such information.

the incumbent,

The applicant further submits that the Commission violated the
Financial Regulation (2) as well as Directive 92/50 (3) by using
evaluation criteria that were not
for
tenders, namely the size of the applicant's proposed team,
which was considered excessive by the Commission, and the
average number of years of experience of the applicant's team,
which the Commission considered was lower than that of the
team proposed by the successful tenderer.

included in the call

Action brought on 19 November 2004 by Kenzo Takada
the Office for Harmonisation in the Internal
against
Market (Trade Marks and Designs) (OHIM)

(Case T-468/04)

(2005/C 57/46)

(Language in which the application was lodged: French)

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
19 November 2004 by Kenzo Takada, established in Paris,
represented by Fernand de Visscher, Eric de Gryse and Donati-
enne Moreau, lawyers.

Kenzo SA was also a party to the proceedings before the First
Board of Appeal.

The applicant claims that the Court should:

— annul the decision delivered on 14 September 2004 by the

First Board of Appeal in case R 643/2003-1;

— order OHIM to pay the costs.

Pleas in law and main arguments:

that

further

applicant

the Commission
considers
The
committed manifest errors of appreciation in its evaluation of
the applicant's tender and in particular in its assessments of the
expertise of its proposed team and of the applicant's financial
offer where, according to the applicant, the Commission mista-
kenly assumed that all sixteen persons proposed by the appli-
cant would be working in parallel for the whole of the project.

The applicant also invokes a violation, by the Commission, of
its obligation, under Article 253 EC, to state reasons and a
failure to provide pertinent information requested by the appli-
cant on the grounds for the rejection of its bid. The applicant
also submits that the Commission violated the principle of
good administration and diligence by acting with significant
delay and by not offering adequate answers to the applicant's
requests for information prior to the submission of the bids.

(1) OJ 2004/S 73 – 061407
(2) Council Regulation (EC, Euratom) No 1605/2002 of 25 June 2002
on the Financial Regulation applicable to the general budget of the
European Communities, OJ L 248, 16/09/2002, p.1

(3) Council Directive 92/50/EEC of 18 June 1992 relating to the coor-
dination of procedures for the award of public service contracts, OJ
L 209, 24/07/1992, p. 1

Applicant
munity trade mark:

for

Com-

Community trade mark
concerned:

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

Mark or sign cited in
opposition:

Kenzo Takada

mark

word

The
'KENZO
TAKADA' for goods and services
in Classes 3, 25 and 42 (Bleaching
preparations and other substances
for laundry use; clothing; services
for providing food and drink and
temporary accommodation, …) –
Application No 2008084

Kenzo SA

for

goods

Community, national and interna-
tional word and figurative marks
'KENZO'
and
the
services in Classes 3, 9, 25 and 42
(Bleaching preparations and other
substances
use;
providing
clothing;
temporary accommodation,
food
and drink, …)

for
services

laundry

Decision of the Opposi-
tion Division:

Application for Community trade
mark rejected.

Decision of
of Appeal:

Pleas in law:

the Board

Appeal dismissed

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