Case T-9/05: Action brought on 12 January 2005 by Hoya Corporation 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), optical industry, trade-mark law

C 106/24

EN

Official Journal of the European Union

30.4.2005

JUDGMENT OF THE COURT OF FIRST INSTANCE

of 1 March 2005

in Case T-185/03 Vincenzo Fusco v Office for Harmonisa-
tion in the Internal Market (Trade Marks and Designs)
(OHIM) (1)

(Community trade mark — Opposition proceedings — Appli-
cation for Community word mark ENZO FUSCO — Earlier
Community word mark ANTONIO FUSCO — Likelihood of
confusion — Similarity between signs — Article 8(1)(b) of
Regulation (EC) No 40/94)

(2005/C 106/54)

(Language of the case: Italian)

Fusco

In Case T-185/03: Vincenzo Fusco, residing in Sarmeola di
Rubano (Italy), represented by B. Saguatti, lawyer, against the
Office for Harmonisation in the Internal Market (Trade Marks
and Designs) (OHIM) (Agents: O. Montalto and P. Bullock), the
other party to the proceedings before the Board of Appeal of
intervening before the Court of First Instance, being
OHIM,
Lugano
Antonio
subsidiary, established in Lugano (Switzerland), represented by
M. Bosshard, S. Verea and K. Muraro — action brought against
the decision of the Fourth Board of Appeal of OHIM of 17
March 2003 in Case R 1023/2001-4, — the Court of First
Instance (Second Chamber), composed of J. Pirrung, President,
A.W.H. Meij and N.J. Forwood, Judges; B. Pastor, Deputy Regis-
trar, for the Registrar, gave a judgment on 1 March 2005, in
which it:

SA Lussemburgo,

International

1. Dismisses the action;

2. Orders the applicant to pay the costs.

(1) OJ C 184 of 2.8.2003.

by F. Baltussen, P. de Casparis and D.C. Coppens,
lawyers,
against the European Police Office (Europol), the seat of which
is at the Hague (Netherlands)
(Agents: D. Heimans and K.
Hennessy-Massaro, and, at the hearing, N. Urban) — applica-
tion for annulment of Europol's decision not to extend the
term of
the applicant's contract of employment and for
compensation for the loss allegedly suffered — the Court of
First Instance (Second Chamber), composed of J. Pirrung, Presi-
dent, A.W.H. Meij and I. Pelikánova, Judges; J. Plingers, Admin-
istrator, for the Registrar, gave a judgment on 1 March 2005,
in which it:

1. Dismisses the application;

2. Orders the parties to bear their own costs.

(1) OJ C 213 of 6.9.2003.

Action brought on 12 January 2005 by Hoya Corporation
the Office for Harmonisation in the Internal
against

Market (Trade Marks and Designs)

(Case T-9/05)

(2005/C 106/56)

(Language in which the application was lodged: English)

JUDGMENT OF THE COURT OF FIRST INSTANCE

of 1 March 2005

in Case T-258/03 Andreas Mausolf v European Police
Office (Europol) (1)

(Temporary staff — Europol staff — Non-extension of
employment contract)

(2005/C 106/55)

(Language of the case: Dutch)

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 12
January 2005 by Hoya Corporation, established in Tokyo,
(Japan) represented by A. Nordemann, lawyer.

Indo Internacional S.A.established in Barcelona (Spain) was also
a party to the proceedings before the Board of Appeal.

The applicant claims that the Court should:

— annul the Decision of the First Board of Appeal of the

OHIM of 3 November 2004 in case R 433/2004-1;

In Case T-258/03: Andreas Mausolf, a former member of the
staff of Europol, residing in Leiden (Netherlands), represented

— order the defendant to pay the costs.

30.4.2005

EN

Official Journal of the European Union

C 106/25

Pleas in law and main arguments

— annul the Commission's Decision C(2004) 4221 final of 26
October 2004 in Case COMP/F-1/38.338-PO/Nadeln, in so
far as it relates to the applicants;

Applicant
munity trade mark:

for

Com-

The applicant

Community trade mark
sought:

Word mark
products
etc.), Community
application No. 1 723 931

for
‘AMPLITUDE’
in class 9 (eyeglasses
trade mark

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

Indo Internacional S.A.

— in the alternative, cancel

the fine of EUR 30 000 000
jointly and severally imposed on the applicants or (further
in the alternative) reduce it;

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

Mark or sign cited in
opposition:

National figurative mark ‘AMPLY’
for products in class 9 (eyeglasses
etc.)

Pleas in law and main arguments

Decision of the Opposi-
tion Division:

Opposition rejected

Decision of
of Appeal:

the Board

Annuls contested decision; regis-
tration refused

Pleas in law:

Violation of Article 8 paragraph
1(b) of Regulation 40/94 (1)

(1) Council Regulation (EC) No 40/94 of 20 December 1993 on the

Community trade mark (OJ 11, p. 1)

In the contested decision, the Commission found that during
the period from 10 September 1994 to 31 December 1999,
the applicants and other undertakings had infringed Article
81(1) EC by particpating in concerted practices and entering
into a series of formal bilateral agreements which were to be
regarded as a tripartite agreement, the effect and object of
which were, first, to share the European hard haberdashery
market — in other words, functional market sharing between
the hand sewing and special needles market, the wider markets
for needles and other hard haberdashery markets — and
secondly, sharing the European market for needles;
in other
words, geographic market sharing in the needles market.

Action brought on 28 January 2005 by William Prym
GmbH & Co. KG and Prym Consumer GmbH & Co. KG
against the Commission of the European Communities

(Case T-30/05)

(2005/C 106/57)

(Language of the case: German)

An action against the Commission of the European Commu-
nities was brought before the Court of First Instance of the
European Communities on 28 January 2005 by William Prym
GmbH & Co. KG and Prym Consumer GmbH & Co. KG, Stol-
berg (Germany), represented by H.J. Meyer-Lindemann, lawyer,
with an address for service in Luxembourg.

The applicants claim that the Court should:

The application is based on three pleas in law. In the first plea
the applicants allege breach of the right to a fair hearing and of
the obligation to state reasons. According to the applicants, the
defendant failed adequately to address various arguments which
the applicants put forward, and it was not clear why the defen-
dant had proceeded on the basis of a particularly serious infrin-
gement. Also, the reasons for the amount of the fine were
simply in a standard form, so that the applicants could not
establish whether factors favourable to them had been taken
into account. Finally, the applicants argue that the defendant's
reasons were subsequently corrected.

In the second plea, the applicants refer to several allegedly
material errors in the application of Article 81(1) EC. No fine
could have been imposed on the first applicant because it could
not be held responsible for the second applicant's conduct.
Furthermore, the defendant had failed to take into account the
fact that the second applicant had made a loss on the goods
concerned, and that
the agreement on geographic market
sharing was a condition of entry of another associated under-
taking into the market for suture needles, and that this agree-
ment therefore restricted competition which would otherwise
not have existed at all. Further, the defendant had misjudged
the size and economic power of that other undertaking.