Case T-434/05: Action brought on  6 December 2005  — Gateway/OHIM
Date: 2006-03-11
Institutions: Court of First Instance
Subjects: EU trade mark, European Union Intellectual Property Office, action for annulment (EU), electrical engineering, information technology industry, trade-mark law

C 60/40

EN

Official Journal of the European Union

11.3.2006

The applicant relies on similar arguments as regards the part of
the contested decision that concerns the case of aircraft under
the leasing system. Specifically on that point, the applicant
relies inter alia again on manifest error of assessment and on
the
the fact
applicant had entered into leasing agreements, whereas,
it
maintains, it had entered only into subleasing operation agree-
ments.

the Commission wrongly considered that

that

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

Other party to the proceedings before the Board of Appeal: Fujitsu
Siemens Computers GmbH (Munich, Germany)

The applicant also relies on a defective statement of reasons, as
regards all the above findings of the Commission.

Form of order sought

As regards the part of the decision which leads to the conclu-
sion that the applicant constitutes OA's successor, the applicant
claims that the Commission has made an error of assessment,
since it did not take account of the fact that OA's activity
continued, that there is no interdependence between the two
companies and that a privatisation process is underway. The
applicant also relies on a defective statement of reasons,
because the Commission did not examine the criterion of the
in the applicant's
commercial
view, required the splitting off of the flights branch of OA, the
creation of a new company and, subsequently, sale to the
private sector

logic of the operation, which,

In connection with the finding in the contested decision of
‘unceasing tolerance’ on the part of Greece towards OA, the
applicant claims infringement of Community law as regards the
definition of State aid, because the Commission did not
examine the conduct of Greece in the light of the criterion of a
private creditor. It also claims that there are defects in the state-
ment of reasons required and infringement of the principle of
proportionality, in so far as the contested decision requires the
applicant to return all unlawful aid granted up to the time it
was split off, despite the fact that those amounts related to all
the activities of the old company, most of which OA continues
to carry out, while the applicant merely provides air transport
services.

— Order that Decision No 1068/2004 of the First Board of
Appeal of
the Office of 14 September 2005 (Case R
1068/2004-1) be annulled and that the applicant's opposi-
tion to Community trade mark application No 2 190 627
in opposition proceedings No B 502 148 be allowed in its
entirety, and;

— Order that the Office pay the applicant's costs.

Pleas in law and main arguments

Applicant for the Community trade mark: Fujitsu Siemens Compu-
ters GmbH

Community trade mark concerned: The word mark ‘ACTIVY Media
Gateway’ for goods and services in classes 9, 35, 38 and 42 —
application No 2 190 627

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

Mark or sign cited: The national and Community word marks
and figurative marks ‘GATEWAY’,
‘GATE-
WAY.NET’, ‘GATEWAY PROFILE’ and ‘GATEWAY ASTRO’ for
goods and services in classes 9, 16, 35, 36, 37 and 38

‘GATEWAY 2000’,

Action brought on 6 December 2005 S Gateway/OHIM

Decision of the Opposition Division: Opposition rejected in its
entirety

(Case T-434/05)

(2006/C 60/78)

Language in which the application was lodged: English

Parties

Applicant: Gateway Inc. (Irvine, USA) [represented by: C. Jones,
P. Massey, Solicitors]

Decision of the Board of Appeal: Dismissal of the appeal

Pleas in law: Infringement of Article 8(1)(b) and Article 8(5) of
Council Regulation No 40/94 as the Board of Appeal defined
the relevant consumers wrongly and erred in the assessment of
the trade mark applied for. Further the applicant claims that
the Board of Appeal disregarded the reputation and well-
known character of the earlier marks and that, contrary to
what the Board of Appeal held, the earlier marks are similar to
the mark applied for.