Case T-75/05: Action brought on 17 February 2005 by NetScout Systems, Inc., 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), computer equipment, information technology industry, trade-mark law

30.4.2005

EN

Official Journal of the European Union

C 106/37

Action brought on 16 February 2005 by The International
Institute for the Urban Environment against the Commis-
sion of the European Communities

submitted by the applicant

to the applicant, had also been used in the context of other
programmes
for which the
Commission had also provided financial assistance. The appli-
cant thus argues that he was justified in considering that this
method was acceptable by the Commission.

(Case T-74/05)

(2005/C 106/74)

(Language of the case: English)

The applicant further alleges that the contested decision does
not contain a sufficient statement of reasons and is dispropor-
tional with regard to the aim pursued, since the total sum
claimed by the applicant is,
in his view, reasonable and in
accordance with the contracts.

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 The Interna-
tional Institute for the Urban Environment, established in Delft
(the Netherlands) represented by Ph. W. M. ter Burg, lawyer.

The applicant claims that the Court should:

— annul Decision INFSO-R2/RB/SOC/Isc D(2004) 541407
regarding the financial audit of IIUE-NL 02-BA14-032 of
the Commission;

— declare it for law that the sum claimed by the applicant is

justified and according to the contracts;

— allow IIEU to claim the hours it spent on the Contracts and
to order the Commission to make a well justified decision
in accordance with the applicable communal rules of sound
administration;

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

Pleas in law and main arguments

in the

The International Institute for the Urban Environment is a one-
man business fully owned by the applicant. In 1999 it entered
into contract No. IPS-1999-00016 with the Commission, under
the terms of which the Institute would receive financial assis-
technological development
the
tance
programme ‘Promotion of innovation and encouragement of
SME participation’. The Commission proceeded to an audit
regarding the reimbursements claimed by the contractors and
the applicant challenges the findings of that audit concerning
personnel costs.

context of

Action brought on 17 February 2005 by NetScout
Systems, Inc., against the Office for Harmonisation in the
Internal Market (Trade Marks and Designs)

(Case T-75/05)

(2005/C 106/75)

(Language in which the application was lodged: English)

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 17
February 2005 by NetScout Systems, Inc., established in West-
ford, Massachusetts (USA), represented by M. Holah, Solicitor.

Kye Systems Corporation, established in Taipei Hsien (Taiwan)
was also a party to the proceedings before the Board of
Appeal.

The applicant claims that the Court should:

— annul the contested decision;

— order that the defendant pays the applicant's costs of this

appeal;

The applicant first contends that the method used by the Insti-
tute to calculate personnel costs was allowed under the condi-
tions of the contract and that, further, the Commission's atten-
tion was explicitly drawn to the use of this particular method.
The Commission never rejected that method which, according

— in the alternative, alter the contested decision, reject the
opposition filed by Kye, allow the CTM application to go
forward and order that the defendant pays the applicant's
costs of this appeal.

C 106/38

EN

Official Journal of the European Union

30.4.2005

Pleas in law and main arguments

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

Netscout Systems, Inc.

The word mark ‘NGENIUS’
for
goods and services in classes 9, 16
and 42 (Computers,
computer
hardware and computer software;
printed
computer
matter;
programming; …) — application
No 1 830 900

Ob. 1 2000-2006), 13 January 2005 (P.E.P. Apulia Ob. 1
2000-2006), 17 January 2005 (Docup Lombardy Ob. 2
2000-2006), 17 January 2005 (P.E.P. Calabria Ob. 1 2000-
2006) and 26 January 2005 (P.E.P. Sardinia Ob. 1 2000-
2006), all intended to make implementation of the payment
of certain advances in the sphere of aid schemes conditional
upon fulfilment of obligations not required by the legislation
in force, for the purpose of improperly limiting the expendi-
ture which is eligible for the use of the Structural Funds
concerned;

2. order the Commission to pay the costs.

KYE Systems Corporation

Pleas in law and main arguments

national

figurative mark
The
‘GENIUS’
in class 9
(computers, disk units, printers,
fax machines, …)

for goods

The pleas in law and main arguments are those raised in Case
T-345/04 Italian Republic v Commission (1).

(1) O.J.E.U. C 262 of 23 October 2004, p. 55.

Decision of the Opposi-
tion Division:

Rejection of the trade mark appli-
cation for all goods covered by it
in class 9

Decision of
of Appeal:

Pleas in law:

the Board

Dismissal of the appeal

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

Action brought on 17 February 2005 by Nicole Schmit
against the Commission of the European Communities

Action brought on 18 February 2005 by the Italian
the European
Republic

the Commission of

against

(Case T-84/05)

(2005/C 106/77)

(Language of the case: French)

Communities

(Case T-83/05)

(2005/C 106/76)

An action against the Commission of the European Commu-
nities was brought before the Court of First Instance of the
European Communities on 17 February 2005 by Nicole
Schmit, residing in Ispra (Italy), represented by Eric Boigelot,
lawyer.

(Language of the case: Italian)

The applicant claims that the Court should:

An action against the Commission of the European Commu-
nities was brought before the Court of First Instance of the
European Communities on 18 February 2005 by the Italian
Republic, represented by Antonio Cingolo, Avvocato dello
Stato.

The applicant claims that the Court should:

— order the production of all files concerning the applicant

and sealed by OLAF;

— order the production of the report which concludes the

internal investigation into the applicant;

— annul the investigation into the applicant;

1. annul the Commission's decisions of: 16 December 2004
(P.E.P. Sicily 2000-2006), 13 January 2005 (P.E.P. Calabria

— annul the Note from OLAF containing ‘notification of the
the Italian judicial

investigation and the information of
authorities’;