Case T-407/05: Action brought on  16 November 2005  — Evian v OHIM
Date: 2006-01-28
Institutions: Court of First Instance
Subjects: EU trade mark, European Union Intellectual Property Office, action for annulment (EU), sparkling wine, trade-mark law, wine

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;