Case T-482/04: Action by Komsa Kommunikation Sachsen AG against the Office for Harmonisation in the Internal Market (Trade Marks and Designs) brought on 13 December 2004
Date: 2005-03-05
Institutions: Court of First Instance
Subjects: EU trade mark, European Union Intellectual Property Office, action for annulment (EU), audiovisual equipment, electrical engineering, telecommunications industry, trade-mark law

C 57/30

EN

Official Journal of the European Union

5.3.2005

Action brought on 10 December 2004 by Advance Maga-
zine Publishers Inc., against the Office for Harmonisation
in the Internal Market (Trade Marks and Designs)

Decision of the Opposi-
tion Division:

Rejection of the Community trade
mark for
the contested goods,
namely clothing

(Case T-481/04)

(2005/C 57/51)

Decision of
of Appeal:

Pleas in law:

(Language in which the application was lodged: English)

the Board

Dismissal of the appeal

Violation of the procedural rules
of Articles 61(1), 62(1) and 74(1)
of Council Regulation No 40/94;
Violation of Articles 73 and 62 (2)
of Council Regulation No 40/94
as Rule 50(2)(h) of
as well
No
Regulation
Commission
2868/95; Violation of Article
43(2) and 43(3) of Council Regu-
lation No 40/94 and Rule 22 of
Commission Regulation 2868/95;
Violation of Article 8(1)(b) 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 10
December 2004 by Advance Magazine Publishers Inc., estab-
lished in New York (USA), represented by M. Esteve Sanz,
lawyer.

J. Capela & Irmãos, Lda., established in Porto (Portugal), was
also a party to the proceedings before the Board of Appeal.

The applicant claims that the Court should:

— annul the decision of the Second Board of Appeal of 27

September 2004 rendered in case R 328/2003-1;

— order the defendant and if the case might be, the intervener,
to pay the costs of proceedings and the costs of appeal
incurred within the OHIM.

Pleas in law and main arguments

Advance Magazine Publishers, Inc.

The word mark ‘VOGUE’
for
goods and services in classes 9,
14,
41
(Clothing,…) — application No
183 756

and

18,

16,

25

Applicant
munity trade mark:

for

Com-

Community trade mark
concerned:

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

Trade mark or
cited in opposition:

sign

Action by Komsa Kommunikation Sachsen AG against the
Office for Harmonisation in the Internal Market (Trade
Marks and Designs) brought on 13 December 2004

(Case T-482/04)

(2005/C 57/52)

(Language of the case: German)

J. Capela & Irmãos, Lda

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 13
December 2004 by Komsa Kommunikation Sachsen AG, estab-
lished in Hartmannsdorf (Germany), represented by F. Hage-
mann, lawyer.

The national word mark ‘VOGUE
PORTUGAL’ for goods in class 25
(footwear) and the business name
‘VOGUE - SAPATARIA’

The other party before the Board of Appeal was Anders + Kern
Präsentationssysteme GmbH & Co. KG., established in Norder-
stedt (Germany).

5.3.2005

EN

Official Journal of the European Union

C 57/31

The applicant claims that the Court should:

Grounds:

No

The decision of
the Board of
Appeal infringed Article 8(1)(b) of
Regulation
40/94,
(EC)
because the Board made an incor-
rect assessment of
the require-
ments for the existence of a risk of
confusion in trade mark law.
In
the applicant's submission, there is
no such risk of confusion between
the marks being compared in this
case.

— set aside the decision of the Fourth Board of Appeal of the
Office for Harmonisation in the Internal Market
(Trade
Marks and Designs) of 6 September 2004 (Case R65/2003-
4) in so far as it allowed the appeal of the opposing party
in respect of the goods submitted for Community registra-
tion: ‘Apparatus for recording, transmission or reproduction
of images, sound and data; electrotechnical and electronic
apparatus and systems composed thereof for the remote
control of industrial processes; all such above-mentioned
installation in vehicles;
goods being also capable of
programmed machine-readable data carriers of all kinds’.

— order the defendant to pay the costs.

Pleas in law and main arguments

Applicant for the Com-
munity mark:

The applicant

Community
submitted for
tion:

mark
registra-

The pictorial mark ‘@k’ for goods
and services in Classes 9, 16, 35,
37, 38 and 42 (Application No
1322460)

the rival
Proprietor of
mark or design cited in
the opposition proce-
dure:

Mark or design cited in
opposition:

Anders + Kern Präsentationssys-
teme GmbH & Co. KG.

The Community pictorial mark
'A+K'
for goods and services in
Classes 6, 9 and 20 (Community
Mark No 294 546).

Decision of the Opposi-
tion Division:

Dismissal of the Opposition.

Decision of
of Appeal:

the Board

electronic

Appeal by Anders+Kern Präsenta-
tionssysteme GmbH & Co. KG
allowed in so far as it related to
‘Apparatus for recording, transmis-
sion or reproduction of
images,
sound and data; electrotechnical
and
and
systems composed thereof for the
control
industrial
remote
above-
all
processes;
mentioned
also
goods
capable of installation in vehicles;
programmed
machine-readable
data carriers of all kinds’. Other-
wise, appeal dismissed.

apparatus

of
such

being

Action brought on 9 December 2004 by François Pilat
the European Union and the
against

the Council of
Commission of the European Communities

(Case T-484/04)

(2005/C 57/53)

(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 9 December 2004 by François Pilat,
residing in Honfleur (France), represented by Jean-François Péri-
caud, lawyer.

The applicant claims that the Court should:

— order the Council of the European Union and the Commis-
sion of the European Communities jointly and severally to
pay the applicant the sum of EUR 377 253, alternatively
the sum of EUR 325 579, together, in either event, with
interest from the date when this application was brought;

— order the Council of the European Union and the Commis-
sion of the European Communities jointly and severally to
pay the costs.

Pleas in law and main arguments

The pleas in law and main arguments raised by the applicant
are the same as those raised by the applicants in Case T-440/
03 (1) Arizmendi and Others v Council and Commission.

(1) OJEU C 59, of 06.03.2004, p. 31.