Case T-167/05: Action brought on 25 April 2005 by Grether AG against the Office for Harmonisation in the Internal Market (Trade Marks and Designs)
Date: 2005-07-23
Institutions: Court of First Instance
Subjects: EU trade mark, European Union Intellectual Property Office, action for annulment (EU), trade-mark law

23.7.2005

EN

Official Journal of the European Union

C 182/37

Pleas in law and main arguments

The European Community,
represented by the European
Commission, entered into three contracts with the defendant in
the context of Community framework programmes for research
and development. Those contracts were more specifically:

— ‘COP 493 — Invite’, which specifically concerned the
carrying out of a project under the title ‘telematics for
internal navigation’ and was to be implemented within 24
months as from 30 December 1994. The defendant was a
member and the co-ordinator of the relevant group.

— ‘TR 1006 — Ausias’, which specifically concerned the
carrying out of a project under the title ‘Αdvanced telematic
systems for integrated transport in conurbations’ and was
to be implemented within 23 months as from 30 December
1995. The defendant was a member of the relevant group.

— ‘V 2043 — Artis’, which concerned the carrying out of a
project under the title ‘Αdvanced telematic systems for road
transport in Spain’ and was to be implemented within 12
months as from 1 January 1992. The defendant was a
member of the relevant group.

In all those cases it was provided that the Commission would
make a financial contribution to the relevant project under the
terms laid down in each agreement. In respect of each agree-
ment the Commission paid to the defendant advances on its
financial contribution.

Following financial checks, the Commission found that the
defendant was using only a part of the monies paid over to it
for the purposes of the relevant project. Specifically:

— Under the ‘V 2043 — Artis’ contract the defendant, as a
member of
the relevant association, received from the
Commission an advance in the amount of EUR 62 621,86.
The Commission adjudged that only the amount of
EUR 53 391,09 had been used by the defendant
for
carrying out the actual programme and has issued a debit
note in the amount of EUR 9 320,77 against the defen-
dant.

By its action the Commission seeks repayment of the above-
mentioned amounts owed, together with interest thereon,
in
accordance with the law applicable to each contract, that is to
say, in the case of the first contract, Greek law and, in the case
of the other two contracts, Spanish law.

Action brought on 25 April 2005 by Grether AG against
the Office for Harmonisation in the Internal Market
(Trade Marks and Designs)

(Case T-167/05)

(2005/C 182/70)

(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 25
April 2005 by Grether AG, established in Binningen (Swit-
zerland), represented by V. von Bomhard, A. Pohlmann and A.
Renck, lawyers.

the

— Under the ‘COP 493 — Invite’ contract the Commission
paid to the defendant as the group coordinator an advance
in the amount of EUR 257 400. The defendant passed on
of
to
other
of
EUR 79 062,70
of
EUR 178 337,30
EUR 42 000 was used for the actual programme. The
Commission has issued a debit note in the amount of
EUR 136 037,30 against the defendant.

participants
and
of which

amount
amount
amount

retained

only

only

the

the

the

Crisgo (Thailand) Co.,
in Samutsakorn
(Thailand) was also a party to the proceedings before the Board
of Appeal.

established

Ltd

The applicant claims that the Court should:

— Under the ‘TR 1006 — Ausias’ contract the Commission
paid to the group in respect of the period during which the
defendant was a member of it an advance in the amount of
EUR 78 341,91. The Commission discovered that only the
amount of EUR 63 229,63 had been used by the defendant
for the actual programme and has issued a debit note in the
amount of EUR 15 112,28 against the defendant.

— annul in its entirety Decision R250/2002-4 of 14 October
2004 of the Board of Appeal of the Office of Harmonisa-
tion in the Internal Market (Trade Marks and Designs);

— order that the costs of the proceedings be borne by the

defendant.

C 182/38

EN

Official Journal of the European Union

23.7.2005

Pleas in law and main arguments

The applicant claims that the Court should:

Applicant
munity trade mark:

for

Com-

Crisgo Co. Ltd.

1. annul the decision of the College of Merits of the Court of
Auditors awarding the applicant his promotion points for
2003;

Community trade mark
concerned:

Figurative mark FL FENNEL for
goods in class 3 application No
903 922

2. annul

the decision of

the appointing authority not

to

promote the applicant to the grade of reviser in 2004;

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

The applicant

Trade mark or
cited in opposition:

sign

Community word mark FENJAL
for goods in class 3

Decision of the Opposi-
tion Division:

Opposition rejected

3. annul the applicant's staff report for 2003;

4. annul decision No 6/2004 of 26 October 2004 of the
Appeal Committee of the Court of Auditors upholding the
applicant's staff report for 2003;

5. annul any related and/or later decision;

6. make good the damage suffered by the applicant and order
the Court of Auditors to pay the costs of these proceedings.

Decision of
of Appeal:

Pleas in law:

the Board

Dismisses the appeal

Violation of Articles 73 and 74 of
Council Regulation No 40/94. In
this context, the applicant alleges
that the Board of Appal based its
decision on various new argu-
and facts not brought
ments
forward or
the
parties.
further
The
claims that the contested decision
violates Article 8(1)(b) of Regu-
lation No 40/94 by concluding
that there was no risk of confu-
sion.

discussed
applicant

by

Action brought on 2 May 2005 by Bart Nijs against the
Court of Auditors of the European Communities

(Case T-171/05)

(2005/C 182/71)

Pleas in law and main arguments

The applicant in the present case, having also brought the
action lodged in Case T-377/04, (1) contests the decisions of
the defendant awarding him promotion points for 2003 and
establishing his staff report for that year, and its decision not to
promote him in 2004 to the post of reviser in the Dutch trans-
lation unit.

In support of his claims he relies on pleas of:

— breach of Article 11a of the Staff Regulations and of the
principles of the duty to have regard for the welfare of offi-
cials, sound administration and equal treatment,

— irregularities in the appraisal procedure in that

it was
entrusted to officials whose integrity had been called into
question by the pre-litigation procedure,

— failure to respect time limits in the appraisal procedure,

— failure in this case to consider comparative merits in the

terms of the Dutch translation unit,

— breach of the principles of legal certainty and the protection
of legitimate expectations by the failure to communicate
the rules applicable to the 2004 promotion procedure,

(Language of the case: French)

— misuse of powers in the case.

An action against the Commission of the European Commu-
nities was brought before the Court of First Instance of the
European Communities on 2 May 2005 by Bart Nijs, Berel-
dange (Luxembourg), represented by Fränk Rollinger,
lawyer,
with an address for service in Luxembourg.

(1) Case T-377/04 Nijs v Court of Auditors

20.11.2004, p. 26).

(OJ 2004 C 284,