Case T-67/05: Action brought on 15 February 2005 by Aytan's Manufacturing Company (UK) Limited against the Office for Harmonisation in the Internal Market (Trade Marks and Designs)
Date: 2005-04-30
Institutions: Court of First Instance
Subjects: EU trade mark, European Union Intellectual Property Office, action for annulment (EU), clothing industry, trade-mark law

C 106/32

EN

Official Journal of the European Union

30.4.2005

The applicant claims that the Court should:

1. annul

the Commission's decision of 5 April 2004 to
appoint the applicant a probationary official in so far as it
does not grade him on recruitment at grade A6 and was
adopted without considering the possibility of allowing him
additional seniority in grade in accordance with Article 32
of the Staff Regulations and Article 4 of the internal direc-
tives of 11 October 1984;

2. order the Commission to pay the costs.

Pleas in law and main arguments

The applicant in this case objects to his grading as a proba-
tionary official in the JRC Directiorate General at grade A7 at
the time of his appointment.

In that regard, he alleges infringement both of Articles 31 and
32 of the Staff Regulations and of the internal directives of 11
October 1984 on the fixing of the grade and step of staff, and
more specifically that of officials in the scientific and technical
services who occupy posts paid from appropriations in the
research budget.

Having regard to his claims, the applicant maintains inter alia
that, at the time of his recruitment as an official, he already
had proof of more than eight years of professional experience
qualifying for additional seniority.

— set aside the negative decision of the Director-General of
the Directorate General for Administration of 26.11.2004
concerning the applicant's complaint of 21.6.2004;

— order the defendant to pay the costs of the proceedings.

Pleas in law and main arguments

in the Legal Service of

The applicant was an official
the
Commission in grade A*14. Due to his special function within
the Legal Service he applied for recognition as a middle
manager with consequent entitlement
increments
prescribed in Articles 44(2) and 46 of the Staff Regulations and
in Article 7(4) of Annex XIII thereto.

to the

In support of his claim, the applicant argues that the decision
rejecting his complaint was formally deficient in that it was
drawn up exclusively in English, although the applicant's first
complaint was written in German and that it infringed Article
253 EC by not addressing the wholly individual nature of his
complaint.

The applicant further complains of an infringement of the
treatment in the assessment and
general principle of equal
grading of his job. The applicant argues that his duties and
responsibilities were on a par with those entrusted to the Head
of Unit. The fact that his successor was granted higher-grade
pay constituted a further infringement of the principle of equal
treatment.

Action brought on 17 February 2005 by Jörn Sack against
the Commission of the European Communities

Action brought on 15 February 2005 by Aytan's Manufac-
turing Company (UK) Limited against
the Office for
Harmonisation in the Internal Market (Trade Marks and
Designs)

(Case T-66/05)

(2005/C 106/67)

(Case T-67/05)

(2005/C 106/68)

(Language of the case: German)

(Language in which the application was lodged: English)

An action against the Commission of the European Commu-
nities was brought before the Court of First Instance of the
European Communities on 17.02.2005 by Jörn Sack, Tervuren
(Belgium), represented by U. Lehmann-Brauns and D. Mahlo,
lawyers.

The applicant claims that the Court should:

— set aside the decisions on the assessment of his remunera-
tion from May 2004 to February 2005 due to a breach of
the principle of equal treatment and reassess his remunera-
tion for those months with due regard to that principle;

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 15
February 2005 by Aytan's Manufacturing Company (UK)
Limited, established in London (United Kingdom) represented
by S. Malynicz, Barrister and M. J. Gilbert, Solicitor.

Criminal Clothing Limited,
(United
Kingdom) was also a party to the proceedings before the Board
of Appeal.

established in Poole

The applicant claims that the Court should:

30.4.2005

EN

Official Journal of the European Union

C 106/33

— Annul the decision of the First Board of Appeal dated 8

The applicants claim that the Court should:

December 2004 in case R 309/2004-1;

— Order that the Office and other parties shall bear their own

— annul the Decision of the Commission C 6/2000 of 20

costs and pay those of the applicant.

October 2004, in its entirety;

Pleas in law and main arguments

— order the Commission to pay the costs of these proceed-

ings.

Applicant
munity trade mark:

for

Com-

Criminal Clothing Limited

Community trade mark
concerned:

Word mark CRIMINAL for goods
in classes 3, 9 and 25 (articles of
clothing etc.) — application No
1676 220

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

Trade mark or
cited in opposition:

sign

The applicant

National
CRIMINAL
mark
DAMAGE for goods in class 25
(articles of clothing etc.)

Decision of the Opposi-
tion Division:

Opposition rejected

Decision of
of Appeal:

Pleas in law:

the Board

Appeal dismissed

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

(1) Council Regulation (EC) No 40/94 of 20.12.1993 on the Com-

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

Action brought on 16 February 2005 by Aker Warnow
Werft GmbH and Kværner ASA against the Commission
of the European Communities

(Case T-68/05)

(2005/C 106/69)

(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 16 February 2005 by Aker
Warnow Werft GmbH, established in Rostock-Warnemünde
(Germany) and Kværner ASA, established in Oslo (Norway),
represented by B.
Immenkamp, Solicitor and M. Schütte,
lawyer.

Pleas in law and main arguments

In October 1992, the German privatisation agency (Treuhan-
danstalt) privatised and sold the East German shipyard Warnow
Werft to the Norwegian Kværner group. In the framework of
the privatisation, a lump sum contribution to the restructuring
of the shipyard, made available in different installments, was
offered. The state aid was notified to and approved by the
European Commission in separate approval decisions.

In the contested decision, the Commission concluded that the
applicants received more aid than was required to cover the
actual contract losses incurred by the shipyard, and that the
excess of aid should be recovered.

submit

In support of their application, the applicants submit that the
Commission committed an error of law and a manifest error of
appreciation. According to the applicants, the amount to be
recovered as state aid incompatible with the EC Treaty was
approved by the Commission in its approval decisions and
constitutes existing aid. The applicants
the
Commission had no right to initiate the formal procedure, to
re-assess the compatibility of the aid and to order the recovery
of parts of the aid. They submit also that all conditions in the
approval decisions of the Commission have been complied
with, in particular the obligation to provide Spill-Over Reports
and to observe capacity limitations. The applicants claim that
the approval decisions did not contain any reservation by the
Commission concerning the amount of aid and that all oper-
ating aid was approved in a lump sum, following a thorough
verification of the necessity of the aid ex ante. Finally, the
applicants state that the approval decisions are still in force.

that

that

furthermore submit

the Commission
The applicants
committed a manifest error of appraisal in concluding that the
amount of state aid received exceeded the level of contract
losses incurred. According to the applicants, the amount of the
aid indicated in the contested decision is not mentioned at all
in the Commission's approval decisions. Also, the amounts
approved by the Commission for contract losses would be
lower than the actual contract losses incurred. The applicants
claim as well that the Commission included in its assessment of
the aid received assets that should be considered not as aid,
including assets for which Kværner had paid a purchase price.
Furthermore, the applicants claim that the Commission ignored
that the amount of aid approved, was only partially received.