Case T-239/05: Action brought on 1 July 2005 by The Black & Decker Corporation against the Office for Harmonisation in the Internal Market (Trade Marks and Designs)
Date: 2005-08-20
Institutions: Court of First Instance
Subjects: EU trade mark, European Union Intellectual Property Office, action for annulment (EU), hand tool, trade-mark law

20.8.2005

EN

Official Journal of the European Union

C 205/33

2. order the Commission to pay the costs.

Pleas in law and main arguments

The applicant has brought two actions for annulment before
the Court of First Instance, the first (Case T-279/04) (1) being
against the Commission's decision of 7 January 2004 declaring
the concentration operation whereby Lagardere was to acquire
exclusive control of the assets of Vivendi Universal Publishing,
subject to honouring the latter's undertakings, compatible with
the common market
(COMP.M/2978 — Lagardere/Natexis/
VUP), and the second (Case T-452/04) (2) being against the
Commission's decision of 30 July 2004, concerning the
approval of Wendel Investment as the acquirer of the assets
surrendered in accordance with the decision of 7 January 2004.

On 27 January 2005, the applicant asked the Commission, on
the strength of Article 255 EC and Regulation No 1049/2001,
for access to certain documents concerning that case. The
Commission sent only one of the documents requested, main-
taining that the others were covered by exceptions to the prin-
ciple of public access to documents. On 18 February 2005, the
applicant made a confirmatory application, which was likewise
rejected by the Commission on 7 April 2005.

Action brought on 1 July 2005 by The Black & Decker
Corporation against the Office for Harmonisation in the
Internal Market (Trade Marks and Designs)

(Case T-239/05)

(2005/C 205/60)

(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 1 July
2005 by The Black & Decker Corporation, established in
Towson, Maryland (USA), represented by P. Harris, Solicitor.

Atlas Copco Aktiebolag, established in Stockholm (Sweden),
was also a party to the proceedings before the Board of
Appeal.

In support of its action against that latter decision, the appli-
cant argues that it is void because it was based on an examina-
tion by categories of document requested and not on a specific
and individual examination of each document.

The applicant claims that the Court should:

It also argues that the Commission made clear errors of assess-
ment in applying each of the exceptions under Article 4(2) of
Regulation No 1049/2001, which it relied upon in dismissing
the request. More particularly, the exceptions concern protec-
tion of the purpose of investigation activities, the protection of
commercial
the protection of the decision-making
process, and the protection of the Commission's legal opinions.
In the applicant's submission, the Commission has not applied
any of those exceptions correctly.

interests,

— annul the contested decision of the First Board of Appeal of

the OHIM of 19 April 2005 (Case R 727/2004-1);

— declare opposition proceedings B497 596 inadmissible;

— order that the costs occasioned by the applicant in the
course of the present proceedings and its appeal be borne
by the OHIM.

The applicant also claims that the Commission has infringed its
right to at least partial access to the documents concerned.

Finally, the applicant claims that the proportionality principle
has been infringed because the Commission did not balance the
exceptions
referred to in Article 4(2) of Regulation No
1049/2001 against the higher public interest justifying disclo-
sure of the documents requested.

(1) OJ C 262 of 23.10.04, p. 33
(2) OJ C 45 of 19.02.05, p. 24

Pleas in law and main arguments:

Applicant
munity trade mark:

for

Com-

The applicant

Community trade mark
concerned:

Coloured three-dimensional mark
in black and yellow, in the form
for goods in Class 7
of a tool
(manually operated portable elec-
tric power tools etc.)

C 205/34

EN

Official Journal of the European Union

20.8.2005

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

Atlas Copco Aktiebolag

Atlas Copco Aktiebolag, established in Stockholm (Sweden),
was also a party to the proceedings before the Board of
Appeal.

Trade mark or
cited in opposition:

sign

Non-registered trade marks and
signs, used in the course of trade
in all Member States for power
tools.

The applicant claims that the Court should:

— annul the contested decision of the First Board of Appeal of

the OHIM of 19 April 2005 (Case R 729/2004-1);

Decision of the Opposi-
tion Division:

Rejects opposition as inadmissible

— declare opposition proceedings B490 336 inadmissible;

Decision of
of Appeal:

the Board

Annuls the contested decision and
remits the case to the Opposition
Division for further prosecution

— order that the costs occasioned by the applicant in the
course of the present proceedings and its appeal be borne
by the OHIM.

Pleas in law:

that

have

claims

applicant

the
The
opposition
been
should
declared inadmissible as it did not
identify
the
earlier marks and signs relied on,
in violation of Rule 18(1) of Regu-
lation No 2868/95 (1)

sufficiently

clearly

(1) Commission Regulation (EC) No 2868/95 of 13 December 1995
implementing Council Regulation (EC) No 40/94 on the Com-
munity trade mark, OJ L 303, 15/12/1995 p. 1

Action brought on 1 July 2005 by The Black & Decker
Corporation against the Office for Harmonisation in the
Internal Market (Trade Marks and Designs)

(Case T-240/05)

(2005/C 205/61)

(Language in which the application was lodged: English)

Pleas in law and main arguments

Applicant
munity trade mark:

for

Com-

The applicant

Community trade mark
concerned:

Coloured three-dimensional mark
in black and yellow, in the form
of a tool
for goods in Class 7
(manually operated portable elec-
tric power tools etc.)

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

Atlas Copco Aktiebolag

Trade mark or
cited in opposition:

sign

Non-registered trade marks and
signs, used in the course of trade
in all Member States for power
tools.

Decision of the Opposi-
tion Division:

Rejects opposition as inadmissible

An action against the Office for Harmonisation in the Internal
(Trade Marks and Designs) was brought before the
Market
Court of First Instance of the European Communities on 1 July
2005 by The Black & Decker Corporation, established in
Towson, Maryland (USA), represented by P. Harris, Solicitor.

Decision of
of Appeal:

the Board

Annuls the contested decision and
remits the case to the Opposition
Division for further prosecution