Case T-326/05: Action brought on 29 August 2005 — Rath v OHIM
Date: 2005-11-12
Institutions: Court of First Instance
Subjects: EU trade mark, European Union Intellectual Property Office, action for annulment (EU), trade-mark law

12.11.2005

EN

Official Journal of the European Union

C 281/27

Action brought on 29 August 2005 — Rath v OHIM

Decision of the Board of Appeal: Dismissal of the appeal.

(Case T-326/05)

(2005/C 281/50)

Language of the case: German

Infringement of Article 8(1)(b) of Regulation (EC) No
Pleas:
40/94 since there is a likelihood of confusion between the
mark applied for and the opposing marks.

Parties

Action brought on 11 August 2005 — Thierry v Commis-
sion

Applicant(s): Matthias Rath (Cape Town, South Africa) [repre-
sentative: S. Ziegler,
lawyer and F. Dehn,
lawyer, C. Kleiner,
lawyer]

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

Other party(ies) to the proceedings before the Board of Appeal: Astra-
Zeneca AB (Södertälje, Sweden)

Parties

(Case T-327/05)

(2005/C 281/51)

Language of the case: French

Applicant(s): Michel Thierry (Howald, Luxembourg) (represented
by: G. Bounéou and F. Frabetti, lawyers)

Forms of order sought by the claimant(s)

Defendant(s): Commission of the European Communities

— annulment of the decision of the Fourth Board of Appeal of
the Office for Harmonisation within the Internal Market
(Trade Marks and Designs) (OHIM) of 18 May 2005;

— order of costs against OHIM.

Form of order sought

The applicant(s) claim(s) that the Court should:

— annul the list of officials promoted in 2004 in so far as that
list does not include the applicant's name and, indirectly,
the preparatory measures for that decision;

Pleas in law and main arguments

— order the defendant to pay the costs.

Applicant for the Community trade mark: AstraZeneca AB

Pleas in law and main arguments

Community trade mark affected: The word mark ‘VIXACOR’
respect of goods in Class 5 (Application No 1 739 697).

in

Owner of the opposing mark or sign in the opposition proceedings:
the claimant.

sign: The Community mark ‘Vitacor’

for
Opposing mark or
goods and services in Classes 5, 16 and 41 (No 689 018), the
Community mark ‘Vitacor Plus’
for goods and services in
Classes 5, 16 and 32 (No 1 668 565) and the German trade
mark ‘Vitacor Plus’ for goods in Classes 5, 16 and 31 (No 399
65 690).

Decision of the Opposition Division: Dismissal of the opposition.

By his action, the applicant challenges the decision of the
Commission not to promote him to Grade A5 in 2004. He
submits that the new system of promotion based on priority
points attributed to the official, applied by the Commission in
the present case, places too much weight on seniority as the
promotion criterion. Therefore, the applicant considers that, in
his case, there was no consideration of the comparative merits
in breach of Article 45 of the Staff Regulations, of the general
provisions implementing that article, of
the Administrative
Guide on appraisal and promotion and of the principle of
equality. On the same basis, he also alleges a breach of the
principle precluding arbitrary proceedings, of the duty to state
reasons, of legitimate expectations, of the ‘patere legem quam
ipse fecisti’ rule and abuse of power.