Case T-408/05: Action brought on  16 October 2005  — Luigi Marcuccio v Commission
Date: 2006-01-28
Institutions: Court of First Instance
Subjects: European Commission, European official, action for annulment (EU), allowances and expenses, health care, redemption

C 22/18

EN

Official Journal of the European Union

28.1.2006

Pleas in law and main arguments

Pleas in law and main arguments

Registered Community trade mark in respect of which a declaration of
invalidity has been sought: ‘MANPOWER’ for goods and services
in Classes 9, 16, 35, 41 and 42 — Community trade mark No
76059

Proprietor of the Community trade mark: Manpower Inc.

Applicant for the declaration of invalidity: The applicant

Decision of the Cancellation Division: Rejection of the application
for a declaration of invalidity

Applicant for a Community trade mark: A. Racke GmbH & Co.
OHG

Community trade mark concerned: The figurative mark ‘REVIAN's’
in gold, black and white for goods in Class 33 (Wine and
sparkling wine) — Application No 945 758

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

Mark or sign cited in opposition: The national and international
word and figurative marks ‘EVIAN’ for goods in Classes 32 and
33 (beer, alcoholic beverages, water, lemonades…)

Decision of
appeal

the Board of Appeal: Dismissal of the applicant's

Decision of the Opposition Division: Rejection of the opposition

Pleas in law: Infringement of Article 7(1)(b) and Article 7(1)(c)
of Council Regulation No 40/94 as the registered mark is
descriptive throughout
the Community and not distinctive.
Moreover, the word 'MANPOWER' needs to be kept free for
trade.

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 the likelihood of confusion between the
marks was rejected without assessment as to the distinctive
character of the mark EVIAN and as there was an error in law
in appraising the similarity of the goods.

Moreover, the opposition was not unfounded as the transla-
tions required under Rule 17(2) of Commission Regulation No
2868/95 were submitted.

Action brought on 16 November 2005 — Evian v OHIM

(Case T-407/05)

(2006/C 22/34)

Language in which the application was lodged: German

Action brought on 16 October 2005 — Luigi Marcuccio v
Commission

Parties

Applicant: Société Anonyme des Eaux Minérales d'Evian (Evian,
France) (represented by: C. Herzt-Eichenrode, lawyer)

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

Parties

(Case T-408/05)

(2006/C 22/35)

Language of the case: Italian

Other party to the proceedings before the Board of Appeal of OHIM:
A. Racke GmbH & Co. OHG (Bingen, Germany)

Applicant: Luigi Marcuccio (Tricase, Italy) (represented by: Ales-
sandro Distante, lawyer)

Defendant: Commission of the European Communities

Form of order sought

Form of order sought

The applicant claims that the Court should:

The applicant claims that the Court should:

— annul decision no 2754/2001 of the Opposition Division

of OHIM of 23 November 2001;

— annul

the implied decision rejecting the request of 11

October 2004;

— annul the decision of the Fourth Board of Appeal of the
(Trade

Office for Harmonisation in the Internal Market
Marks and Designs) of 22 July 2005 (Case R 82/2002-4);

— order the defendant to pay the costs.

— annul, so far as necessary, the decision of 4 August 2005;

— order the defendant to pay the applicant the additional sum
of EUR 381.04 needed to make up 100 % (one hundred
per cent) reimbursement of medical expenses;

28.1.2006

EN

Official Journal of the European Union

C 22/19

— order the defendant to pay the applicant default interest at
the rate of 10 % (ten per cent), with annual capitalisation
from 11 October 2004 until actual payment;

— order the Commission to pay the costs.

Pleas in law and main arguments

The applicant in this case objects to the defendant's refusal to
reimburse 100 % of the medical expenses incurred by him.

The pleas and main arguments are those relied on in Case T-
18/04 Marcuccio v Commission (1).

In particular,
the applicant alleges absolute failure to state
reasons, manifest error of assessment and infringement of
Article 72 of the Staff Regulations and of the duty to have
regard to the welfare of officials, the duty of non-discrimination
and the principle of sound administration.

(1) OJ C 71 of 20.3.2004, p. 38.

Action brought on 8 November 2005 — A.S.TER v
Commission

(Case T-409/05)

(2006/C 22/36)

European Parliament and of the Council of 30 May 2001
regarding public access to European Parliament, Council and
Commission documents,
(and annexes
to the
thereto) sent to the Commission on 21 February 2005, which
gave rise to an investigation which may lead to initiation of
formal infringement proceedings against the applicant.

complaint

Access was withheld on the basis that disclosure might have
had an adverse impact on the conduct of the investigation by
the Commission.

In support of its claims, the applicant alleges infringement of
Article 4(2) of Regulation No 1049/2001, of the principle audi
alteram partem and of the principles of transparency, coopera-
tion and participation in proceedings, and also lack of an
adequate statement of reasons.

It submits in that regard that there is, despite the defendant's
claim, no need to withhold distribution of documents relating
to the infringement proceedings in order to avoid undermining
the inquiries, but that, on the contrary, it is necessary for the
purpose of such inquiries for the procedure to be conducted
with the greatest transparency and cooperation, so that the
Municipality of Genoa and the applicant can produce the docu-
mentation required for conduct of the investigations.

Furthermore, since the applicant is a party to administrative
proceedings before the defendant,
the contested decision
infringes the principle audi alteram partem.

The applicant adds that objections to rights of access must be
interpreted restrictively and in the light of the principle entitle-
ment to information and the principle of proportionality.

Language of the case: Italian

(1) OJ L 145 of 31.5.2001, p. 43.

Parties

Applicant(s): Società A.S.TER S.p.A. (Genova, Italy) (represented
by: Lorenzo Acquarone and Daniela Anselmi)

Defendant(s): Commission of the European Communities

Action brought on 25 November 2005 — Hellenic
Republic v Commission of the European Communities

Form of order sought

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

— annul the contested measures and, as a result, grant rights
of access and therefore release a full copy of the complaint
and the annexes thereto;

— order the defendant to pay the costs.

Pleas in law and main arguments

The applicant in the present action, a limited liability company
most of whose capital is held by the Municipality of Genoa,
seeks annulment of the defendant's decision rejecting access,
under Article 7(e) of Regulation (EC) No 1049/2001 (1) of the

(Case T-415/05)

(2006/C 22/37)

Language of the case: Greek

Parties

Applicant: Hellenic Republic (represented by: A. Samoni and P.
Milonopoulos)

Defendant: Commission of the European Communities