Case T-86/05: Action brought on 22 February 2005 by K & L Ruppert Stiftung & Co. Handels-KG against the Office for Harmonisation in the Internal Market (Trade Marks and Designs)
Date: 2005-06-25
Institutions: Court of First Instance
Subjects: EU trade mark, European Union Intellectual Property Office, action for annulment (EU), clothing industry, footwear industry, trade-mark law

C 155/22

EN

Official Journal of the European Union

25.6.2005

ORDER OF THE COURT OF FIRST INSTANCE

of 8 April 2005

in Case T-401/03: Deirdre McCabe v Commission of the
European Communities (1)

(Officials — Recruitment — Probationary period at Eurostat
— Dismissal following the probationary period — Action for
annulment — Claim for damages — Preliminary administra-
tive complaint — Inadmissible)

Köbbing,
lawyer, against Office for Harmonisation in the
Internal Market (Trade Marks and Designs) (OHIM), represented
by G. Schneider, acting as Agent,
the other party to the
proceedings before the Board of Appeal of OHIM being Paul
Hartmann Aktiengesellschaft,
in Heidenheim
(Germany), — ACTION for annulment of the decision of the
First Board of Appeal of OHIM of 17 December 2003 (Case R
193/2002-1)
relating to opposition proceedings between
Axiom Medical, Inc. and Paul Hartmann Aktiengesellschaft —
the Court of First Instance (Fourth Chamber), composed of H.
Legal, President, P. Lindh and V. Vadapalas, Judges; H. Jung,
Registrar, made an order on 8 March 2005, the operative part
of which is as follows:

established

(2005/C 155/43)

(Language of the case: French)

In Case T- T-401/03: Deirdre McCabe, a former probationer at
the Commission of the European Communities, residing in
Mondorf-les-Bains (Luxembourg), represented by M- Spandre
and B. Zammitto, lawyers, against Commission of the European
Communities (Agents: J. Currall and H. Kraemer, assisted by
B. Wägenbaur, lawyer, with an address for service in Luxem-
bourg — application, first, for annulment of the Commission
decision of 25 August 2003 dismissing the applicant following
her probationary period and, second, for damages, the Court of
First Instance (Fourth Chamber), composed of H. Legal, Presi-
dent, P. Lindh and V. Vadapalas, Judges; H. Jung, Registrar,
made an order on 8 April 2005 in which it:

1. Dismisses the application as inadmissible;

2. Orders the parties to bear their own costs.

(1) OJ No 35 of 7.2.2004.

ORDER OF THE COURT OF FIRST INSTANCE

of 8 March 2005

in Case T-84/04 Axiom Medical, Inc. v Office for Harmoni-
sation in the Internal Market (Trade Marks and Designs)
(OHIM) (1)

(Community trade mark — Opposition — Withdrawal of
opposition — No need to adjudicate)

(2005/C 155/44)

(Language of the case: German)

1. There is no need to adjudicate on the application;

2. Each party shall bear its own costs.

(1) OJ C 106, 30.4.2004.

Action brought on 22 February 2005 by K & L Ruppert
Stiftung & Co. Handels-KG against the Office for Harmoni-
sation in the Internal Market (Trade Marks and Designs)

(Case T-86/05)

(2005/C 155/45)

(Language in which the application was submitted: German)

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 22
February 2005 by K & L Ruppert Stiftung & Co. Handels-KG,
established in Weilheim (Germany), represented by D. Spohn,
lawyer.

Natália Cristina Lopes de Almeida Cunha, Cláudia Couto
Simões and Marly Lima Jatobá, residing at Vila Nova de Gaia
(Portugal), were 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 7

December 2004 in Case R 328/2004-1;

In Case T-84/04: Axiom Medical, Inc., established in Rancho
represented by R.
Dominguez (United States of America),

— order the defendant to pay the costs.

25.6.2005

EN

Official Journal of the European Union

C 155/23

Pleas in law and main arguments

Action brought on 22 February 2005 by Quelle Aktien-
gesellschaft against the Office for Harmonisation in the
Internal Market (Trade Marks and Designs)

Applicants
munity trade mark:

for Com-

Natália Cristina Lopes de Almeida
Cunha, Cláudia Couto Simões and
Marly Lima Jatobá

Community trade mark
concerned:

Figurative mark ‘CORPO livre’ for
goods in Classes 18 and 25 (Bags,
clothing …) — Application No
1811470

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

The applicant

Mark or sign cited in
opposition:

National and international word
mark ‘LIVRE’
for goods in Class
25 (Clothing and shoes)

(Case T-88/05)

(2005/C 155/46)

(Language in which the application was submitted: German)

Decision of the Opposi-
tion Division:

The opposition was rejected as the
evidence of use submitted was
regarded as having been submitted
out of time, and use of the earlier
mark was therefore deemed not to
have been established.

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
22 February 2005 by Quelle Aktiengesellschaft, established in
Fürth (Germany), represented by H. Lindner, lawyer.

Decision of
of Appeal:

Pleas in law:

the Board

Dismissal of the applicant's appeal.

Nars Cosmetics, Inc., Madrid, was also a party to the proceed-
ings before the Board of Appeal.

Incorrect application of Rule 71,
in conjunction with Rule 22, of
Commission Regulation (EC) No
2868/95 of 13 December 1995
implementing Council Regulation
(EC) No 40/94 on the Community
trade mark (1) and Article 74(2) of
Regulation (EC) No 40/94.

Those provisions afford a margin
of discretion in relation to consid-
eration of evidence in inter partes
proceedings
the
defendant did not exercise that
discretion.

too. However,

The applicant claims that the Court should:

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

of 17 December 2004 in Case R 379/2004-2;

— annul the decision of the Opposition Division of 6 April

2004 (No 1138/2004) on Opposition No B288706;

(1) OJ 1995 L 303, p. 1.

— allow the opposition and reject

trade mark application

No 1333657;

— order OHIM to pay the costs.