Case T-88/05: Action brought on 22 February 2005 by Quelle Aktiengesellschaft 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, sport, trade-mark law

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.

C 155/24

EN

Official Journal of the European Union

25.6.2005

Pleas in law and main arguments

European Communities on 4 April 2005 by José Antonio de
Brito Sequeiro Carvalho, residing in Lisbon, represented by
Karel Hartog Hagenaar, lawyer.

Applicant
munity trade mark:

for

Com-

Community trade mark
concerned:

Nars Cosmetics, Inc.

bleaching

Figurative mark ‘NARS’ for goods
in Classes 3, 18 and 25 (Cleaning
preparations,
and
leather,
footwear,
clothing,
headgear …) — Application
No 1333657.

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

The applicant.

Mark or sign cited in
opposition:

National
figurative mark ‘MARS’
for goods in Class 25 (Footwear,
shoes,
in
clothing).

particular

sports

The applicant claims that the Court should:

1. declare the contested act non-existent and void;

2. annul or withdraw all

referring to,
confirming or seeking to extend the purported effects of
that non-existent act;

subsequent

acts

3. order the payment of compensation for the detrimental
estimated at

consequences of
EUR 30 000, out of damage estimated at EUR 300 000;

act, provisonally

that

4. order the defendant to pay the costs of proceedings and

outlays.

Decision of the Opposi-
tion Division:

Rejection of the applicant's oppo-
sition.

Decision of
of Appeal:

Pleas in law:

the Board

Dismissal of the applicant's appeal.

Pleas in law and main arguments

Infringement of Article 8(1)(b) of
Regulation (EC) No 40/94 due to
inadequate consideration of
the
the marks and the
similarity of
identity or similarity of the goods.

The present action has been brought inter alia against the act
which the Director-General acting for the Directorate-General
for Development is alleged to have required the applicant to
sign and to have had placed on his administrative file, whereby
he decided to require the applicant to take sick leave. The
applicant also objects to the maintenance of a parallel file.

In the applicant's opinion,
regarded as legally non-existent.

the act

in question should be

In support of his claims, the applicant further alleges:

— that the reasons for the contested act are invalid;

— that the decision rejecting the complaint lodged pursuant to
Article 90 of the Staff Regulations is based on facts and
conduct attributed to him, of which he had no knowledge,
which had never been referred to in his periodic reports
and which had never been mentioned to him by his
immediate superiors;

— the existence in this case of misuse of powers and abuse of

process;

— breach of the principles of equality and non-discrimination.

Action brought on 4 April 2005 by José Antonio de Brito
Sequeiro Carvalho against the Commission of the Euro-
pean Communities

(Case T-145/05)

(2005/C 155/47)

(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