Case T -342/05: Action brought on  14 September 2005  — Henkel v OHIM
Date: 2005-11-26
Institutions: Court of First Instance
Subjects: EU trade mark, European Union Intellectual Property Office, action for annulment (EU), cosmetics industry, trade-mark law

C 296/28

EN

Official Journal of the European Union

26.11.2005

Action brought on 9 September 2005 — MacLean-Fogg/
OHIM

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

(Case T-339/05)

(2005/C 296/60)

Other party/parties to the proceedings before the Board of Appeal:
BVM S.p.A. (Bologna, Italy)

Language of the case: English

Form of order sought

Parties

Applicant(s): MacLean-Fogg Company (Mundelein, USA) [repre-
sented by: H. Eichmann, G. Barth, U. Blumenröder, C. Niklas-
Falter, M. Kinkeldey, K. Brandt, A. Franke, U. Stephani, B. Alle-
kotte, E. Bertram, K. Lochner, B. Ertle, C. Neuhierl, S. Prückner,
C. Schmitt, B. Mehnert, P. Lübbe, S. Brötje, lawyers]

— Annul the decision of the Fourth Board of Appeal of the
OHIM of 23 May 2005 in Case R 434/2003-4 on the
grounds that it does not comply with Art 8 (1)(b) of Regu-
lation No 40/94;

— Order the defendant to pay the costs.

Pleas in law and main arguments

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

Applicant for the Community trade mark: The applicant

Form of order sought

— Annul the decision of the First Board of Appeal of the
Office for Harmonization in the Internal Market (Trade-
marks and Designs) in the case R 1122/2004-1 of June 20,
2005;

— order the costs of the proceedings to be borne by the defen-

dant.

Pleas in law and main arguments

Community trade mark concerned: The word mark ‘LOKTHREAD’
for goods in class 6 (bolts, bolts of metal, nuts, nuts of metal)
— application No 3 440 666

Decision of the examiner: Refusal of the application for all goods

Decision of the Board of Appeal: Dismissal of the appeal

Pleas in law: Infringement of Article 7(1)(b) and (c) of Council
Regulation No 40/94 as the trade mark has to be considered as
a whole and not as composed of two English words and thus
possesses a minimum degree of distinctiveness.

Community trade mark concerned: The word mark ‘Eagle’
goods in classes 3, 18 and 25 — application No 1 595 909

for

Proprietor of the mark or sign cited in the opposition proceedings:
BVM S.p.A.

Mark or sign cited: The national and international figurative
mark and word mark ‘Blue Eagle’ for goods in classes 3, 18 and
25

Decision of the Opposition Division: Opposition upheld for all the
contested goods

Decision of the Board of Appeal: Dismissal of the appeal

Pleas in law: Infringement of Article 8(1)(b) of Council Regu-
lation No 40/94 as there is no likelihood of confusion between
the conflicting trade marks. The overall impression of the two
trade marks is substantially different and the component ‘eagle’
is not the dominating element of the opposition trade mark.

Action brought on 14 September 2005 — Henkel v OHIM

(Case T -342/05)

(2005/C 296/62)

Action brought on 13 September 2005 — Adler Mode-
märkte/OHIM

Language in which the application was lodged: German

(Case T-340/05)

(2005/C 296/61)

Parties

Language in which the application was lodged: English

Parties

Applicant(s): Henkel KGaA (Düsseldorf, Germany) (represented
by: C. Osterrieth, lawyer)

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

Applicant(s): Adler Modemärkte GmbH (Haibach, Germany)
[represented by: R. Kaase, lawyer]

Other party or parties to the proceedings before the Board of Appeal
of OHIM: Serra Y Roca S.A. (Barcelona, Spain)

26.11.2005

EN

Official Journal of the European Union

C 296/29

Form of order sought

The applicant claims that the Court should:

— Annul the decision of the First Board of Appeal of the
Office for Harmonisation in the Internal Market of 14 July
2005 in the appeal proceedings R 0556/2003-1 regarding
the application for Community trade mark No 1 284 470,
served on 19 July 2005;

— Order the Office for Harmonisation in the Internal Market

to pay the costs.

Pleas in law and main arguments

Applicant for a Community trade mark: SERRA Y ROCA, S.A.

Community trade mark concerned: The word mark ‘COR’
goods in Class 3 — application No 1 284 470

for

Proprietor of the mark or sign cited in the opposition proceedings:
The applicant

Mark or sign cited in opposition: The national mark ‘Dor’ for
goods in Classes 3, 5 and 21

Decision of the Opposition Division: Rejection of the opposition
in respect of the goods ‘scouring and abrasive preparations;
soaps’ in Class 3

Decision of
appeal

the Board of Appeal: Dismissal of the applicant's

Pleas in law: Infringement of Article 8(1)(b) of Council Regu-
lation No 40/94 because of likelihood of confusion of the
marks in question due to visual and aural similarity. In addition
the applicant's mark has above average distinctive character
due to intensive use.

— declare that the said Decision, even if valid, would in any
event be void as to waiver of privilege, since it speaks only
of immunity; and

— order the defendant to pay the costs of the applicant.

Pleas in law and main arguments

The applicant is a Member of the European Parliament. Crim-
inal proceedings were instituted against him following which
the Parliament was requested to confirm that the applicant's
prosecution might proceed in accordance with the 1965
Protocol on privileges and immunities of
the European
Communities and, in any event, waive any privilege or immu-
nity so that the prosecution could proceed. By the contested
Decision the Parliament decided to waive the applicant's immu-
nity.

The applicant seeks the annulment of this Decision. He submits
that the Decision was wrong in law in that it considers that
Article 8 of
the 1965 Protocol does not grant protection
against judicial prosecution. He argues that the Parliament's
reasoning is inconsistent, waiving something that it holds not
to exist.

The applicant further contends that the Parliament did not
carry out a fair and complete consideration of the facts and
arguments of both sides.
In this context the applicant also
invokes a violation of Rule 7(7) of the Parliament's Rules of
Procedure,
the Committee expressed an
opinion on the merits of the prosecution whilst forbidden from
doing so.

to the extent

that

The applicant finally invokes the absence of full and adequate
reasons for the contested Decision and submits that it was not
reasonable or proportionate.

Action brought on 5 September 2005 — V/Parliament

(Case T-345/05)

(2005/C 296/63)

Language of the case: English

Parties

Applicant(s): V. (Binsted, United Kingdom) [represented by: J.
Lofthouse, barrister, M. Monan, C. Hayes, solicitors]

Defendant(s): European Parliament

Form of order sought

Action brought on 12 September 2005 — Procter &
Gamble/OHIM

(Case T-346/05)

(2005/C 296/64)

Language of the case: English

Parties

Applicant(s): The Procter & Gamble Company (Cincinnati, USA)
[represented by: G. Kuipers, lawyer]

— declare void and annul the Decision of the European Parlia-
ment dated 5 July 2005 to waive the applicant's immunity;

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