Case T-313/05: Action brought on 10 August 2005 — Microsoft/Commission
Date: 2005-10-15
Institutions: Court of First Instance
Subjects: European Commission, action for annulment (EU), industrial secret, intellectual property, software

C 257/16

EN

Official Journal of the European Union

15.10.2005

Pleas in law: It is irrelevant from a legal viewpoint that the mark
applied for is a geometric figure, since in respect of the role of
trade marks and their capability of working as company signs,
only the assessment of the average consumer who is reasonably
well
informed and reasonably observant and circumspect is
relevant. The defendant has breached that principle of assess-
ment in the contested decision. The figure in the form of a
pentagon is unusual and striking and therefore has distinctive
character and indicates the company origin. Article 7(1)(b) of
Regulation (EC) No 40/94 of 20 December 1993 on the Com-
munity trade mark does not thereby preclude registration of
the mark of the applicant for which protection is sought.

Action brought on 10 August 2005 — Italian Republic/
Commission of the European Communities

(Case T-308/05)

(2005/C 257/30)

Language of the case: Italian

Parties:

in Cyprus,
Commission — Programmes and projects
Greece, Hungary,
Italy, Malta and the Netherlands —
concerning POR Apulia 2005-2006 (No CCI 1999 IT 16
PO 009) — Payment from the Commission different from
the amount requested;

— annul memorandum No 05728 of 17 June 2005 of the
the European
Regional Policy Directorate General of
in Cyprus,
Commission — Programmes and projects
Greece, Hungary,
Italy, Malta and the Netherlands —
concerning POR Apulia 2005-2006 (No CCI 1999 IT 16
PO 009) — Payment from the Commission different from
the amount requested;

— annul memorandum No 05952 of 17 June 2005 of the
Regional Policy Directorate General of
the European
Commission — Programmes and projects
in Cyprus,
Italy, Malta and the Netherlands —
Greece, Hungary,
concerning POR Apulia 2005-2006 (No CCI 1999 IT 16
PO 009) — Payment from the Commission different from
the amount requested;

— annul all related and prior measures; and

— order the Commission of the European Communities to

pay the costs.

Pleas in law and main arguments:

The pleas in law and main arguments are the same as those
relied on in Case T-345/04 Italian Republic v Commission. (1)

Applicant: Italian Republic (represented by: Antonio Cingolo,
Avvocato dello Stato)

(1) OJ C 262 of 23.10.2004, p. 55.

Defendant: Commission of the European Communities

Form of order sought:

The applicant claims that the Court should:

— annul memorandum No 05272 of 7 June 2005 of the
the European
Regional Policy Directorate General of
Commission — Programmes and projects
in Cyprus,
Greece, Hungary, Italy, Malta and the Netherlands — Italy
and Malta — concerning POR Campania Ob. 1 — 2005-
2006 (No CCI 1999 IT 16 1 PO 007) — Declaration of
interim expenditure and request for payment;

— annul memorandum No 05453 of 8 June 2005 of the
the European
Regional Policy Directorate General of
in Cyprus,
Commission — Programmes and projects
Greece, Hungary,
Italy, Malta and the Netherlands —
concerning DOCUP Ob. 2 — Latium 2005-2006 (No CCI
2000 IT 16 2 DO 009) — Payment from the Commission
different from the amount requested;

Action brought on 10 August 2005 — Microsoft/Commis-
sion

(Case T-313/05)

(2005/C 257/31)

Language of the case: English

Parties:

Applicant(s): Microsoft Corporation (Washington, USA) [repre-
sented by: J.-F. Bellis, lawyer, I. Forrester, QC]

— annul memorandum No 05726 of 17 June 2005 of the
the European

Regional Policy Directorate General of

Defendant(s): Commission of the European Communities

15.10.2005

EN

Official Journal of the European Union

C 257/17

Form of order sought:

— annul the Commission Decision of 1 June 2005;

— order the Commission to bear the costs.

Finally, the applicant submits that the letter of 1 June 2005
contravenes principles of public international law binding on
the Community because it entails a worldwide and thus extra-
territorial disclosure of the applicant's property rights.

(1) OJ C 179 of 10 July 2004, p. 18.

Pleas in law and main arguments:

Action brought on 30 August 2005 — TUI AG v OHIM

Following the Commission's Decision of 24 March 2004,
contested in Case T-201/04 (1) and according to which the
applicant
for certain
is required to disclose specifications
Windows protocols in order to ensure interoperability with
Windows, the Commission informed the applicant by letter of
1 June 2005 that, in its opinion, the applicant is under an obli-
gation to permit distribution to third parties — non-licensees
— in source code form of software developed by competitors
on the basis of the disclosed Windows protocol specifications
unless the software includes an invention by the applicant satis-
fying criteria of novelty and inventiveness.

The applicant contests the Commission's letter of 1 June 2005
as the applicant contends that the distribution in source code
form of the software in question would grant non-licensees
access to the applicant's trade secrets without giving the appli-
cant the possibility to ensure that they are kept confidential
through licensing terms as is the case for licensees.

The applicant is of the opinion that the letter of 1 June 2005
imposes an illegal deprivation of the applicant's property rights
and that the Commission lacked competence to impose obliga-
tions going beyond those required by the Decision of 24 March
2004 as the Commission's letter of 1 June 2005 purports to
apply this Decision.

The applicant further alleges that the letter of 1 June 2005
breaches the principle of proportionality as it goes beyond
what is necessary to remedy the abuse established by the Deci-
sion of 24 March 2004.

(Case T-325/05)

(2005/C 257/32)

Language in which the application was lodged: German

Parties:

Applicant(s): TUI AG (Hannover, Germany) (represented by D.
von Schultz)

Defendant: Office for Harmonisation in the Internal Market
(Trade Marks and Designs)

Form of order sought:

The applicant claims that the Court should:

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

of 25 May 2005 in Case R 183/2004-4;

— require OHIM to register the trade mark ‘Fliegen zum Taxi-
preis’ applied for under number EU 002851681 for all
services covered by the application;

— order OHIM to pay the costs of the appeal procedure and

of the present case.

Moreover the applicant claims that the test of novelty and
inventiveness set out in the letter of 1 June 2005 breaches the
principle of legal certainty as it is unclear, imprecise and very
difficult to apply meaningfully in a trade secret context.

Community trade mark concerned: Word mark ‘Fliegen zum Taxi-
preis’ for services in Classes 36 and 39 — application No
2 851 681.

Pleas in law and main arguments: