Case T-439/05: Action brought on  13 December 2005  — Royal Bank of Scotland/OHIM
Date: 2006-03-25
Institutions: Court of First Instance
Subjects: EU trade mark, European Union Intellectual Property Office, action for annulment (EU), trade-mark law

C 74/22

EN

Official Journal of the European Union

25.3.2006

So far as concerns the payment of sums by the State in respect
of its debts, the applicant does not dispute that those payments
were made, but considers that they do not involve elements of
State aid and pleads in this regard that Article 87(1) EC has
been infringed. More specifically,
the applicant pleads that
continuance of State aid, of which those payments by the
Greek State form part, had been accepted by the Commission,
and by the contested decision the Commission argues the
In the same
contrary under a mistaken legal assessment.
context, the applicant contends that the Commission manifestly
erred in its assessment in relation to the payments that were
made before the alteration of certain guarantees and to the clas-
sification of certain payments by the State as State aid. The
applicant also pleads, in relation to this part of the decision
too, infringement of an essential procedural requirement, that
is to say of the duty to state reasons.

In relation to the finding in the contested decision that Greece
displayed ‘continuous forbearance’ towards OA, the applicant
submits that Community law was infringed as regards the
meaning of State aid, because the Commission did not examine
Greece's conduct in the light of the ‘private creditor’ test and
failed to satisfy the burden of proof. It further pleads that there
was a manifest error of assessment in relation to the calculation
and the quantification of the supposed benefit and that the
reasons stated were insufficient.

Finally, the applicant pleads infringement of general principles
of Community law, that is to say, first of all, the right to be
heard, which it considers to have been infringed because of the
Commission's refusal to grant the Hellenic Republic, and by
extension the applicant itself as a directly affected party, access
to the findings drawn up by a firm of auditors appointed by
the Commission. The applicant further pleads infringement of
the principle ‘non bis in idem’ because the contested decision
has imposed interest, on the basis of the Community rate of
interest, on the sums of aid which must be recovered, but the
latter already include fines, interest and additional charges on
the basis of the national provisions.

Other party/parties to the proceedings before the Board of Appeal:
Kaminomoto Co. Ltd. (Hyogo-Ken, Japan)

Form of order sought

— Annul the decision of the First Board of Appeal of OHIM

dated 15 September 2005 in case R 1143/2004-1;

— order OHIM to pay the costs.

Pleas in law and main arguments

Applicant for the Community trade mark: The applicant

Community trade mark concerned: The figurative mark ‘AJINO-
MOTO’ for goods in classes 1, 5, 29, 30 and 31 — application
No 1 307 024

Proprietor of the mark or sign cited in the opposition proceedings:
Kaminomoto Co. Ltd.

Mark or sign cited: The national word mark ‘KAMINOMOTO’
for goods in class 3

Decision of the Opposition Division: Rejection of the opposition
in its entirety

Decision of the Board of Appeal: Annulment of the Opposition
Division's decision

Pleas in law: Infringement of Article 8(1)(b) of Council Regu-
lation No 40/94 since the Board of Appeal according to the
applicant held that the opponent in the opposition proceedings
only had to prove the existence of an earlier right at the time
of the filing of the opposition. According to the applicant it is
the time of the decision of the Opposition Division, or alterna-
tively when the time-limit
for providing further evidence
expires, by which an earlier right has to be proven to be in
force.

Action brought on 12 December 2005 — Ajinomoto/
OHIM

Action brought on 13 December 2005 — Royal Bank of
Scotland/OHIM

(Case T-436/05)

(2006/C 74/43)

Language in which the application was lodged: English

Parties

Applicant: Ajinomoto Co., Inc. (Tokyo, Japan) [represented by:
G. Würtenberger and R. Kunze, lawyers]

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

(Case T-439/05)

(2006/C 74/44)

Language in which the application was lodged: English

Parties

Applicant: The Royal Bank of Scotland Group plc (Edinburgh,
United Kingdom) [represented by: J. Hull, Solicitor]

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

Other party/parties to the proceedings before the Board of Appeal:
Lombard Risk Systems Limited and Lombard Risk Consultants
limited (London, United Kingdom)

25.3.2006

EN

Official Journal of the European Union

C 74/23

Form of order sought

Action brought on 16 December 2005 — Biofarma v
OHIM

— Annul the decision of the Fourth Board of Appeal of the
Office for Harmonisation in the Internal Market (OHIM) of
21 July 2005 (Case R 370/2004-4) relating to Opposition
Proceedings No. B 370959, notification of which was dated
13 October 2005; and

— order the OHIM to pay the costs.

(Case T-442/05)

(2006/C 74/45)

Language in which the application was lodged: Spanish

Pleas in law and main arguments

Applicant for the Community trade mark: The applicant

Community trade mark concerned: The word mark ‘LOMBARD
DIRECT’ for services in classes 35, 36 and 42 — application
No 1 523 992

Proprietor of the mark or sign cited in the opposition proceedings:
Lombard Risk Systems Limited and Lombard Risk Consultants
Limited

Mark or sign cited: The Community and national word marks
‘LOMBARD RISK’ and ‘LOMBARD GROUP OF COMPANIES’
for goods and services in classes 9, 36 and 41

Parties

Applicant: Biofarma (Neuilly-sur-Seine, France) (represented by:
Victor Gil Vega and Antonia Ruiz López, lawyers)

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

Other party to the proceedings before the Board of Appeal of OHIM:
Anca Health Care Limited

Form of order sought

The applicant claims that the Court should:

— annul the decision of the First Board of Appeal of OHIM of
26 September 2005 and declare that there is a likelihood of
confusion between the marks CAFON and DAFLON which
designate similar products;

— order OHIM to pay the costs,
applicant's representatives.

including the fees of the

Pleas in law and main arguments

Decision of the Opposition Division: Opposition upheld for part
of the contested services

Applicant for a Community trade mark: Surtech International Ltd.

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 Board of Appeal applied an incorrect
legal test when considering whether there was a likelihood of
confusion between the conflicting marks in as much as it
found it conceivable that confusion would occur and that the
possibility of confusion could not be excluded. According to the
applicant
the Board thereby reversed the burden of proof,
requiring the applicant to prove that there was no likelihood of
confusion. Furthermore, the Board of Appeal failed to give
proper reasons for its decision contrary to Article 73 of the
Regulation.

Community trade mark concerned: word mark ‘CAFON’ for goods
in Class 5 (pharmaceutical products and substances).

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

Mark or sign cited in opposition: word mark ‘DAFLON’ (registered
in Spain, Portugal, Benelux, Austria, France and Italy) for goods
in Class 5 (pharmaceutical products and substances).

Decision of the Opposition Division: opposition dismissed.

Decision of the Board of Appeal: application dismissed.

Pleas in law: incorrect application of Article 8(1)(b) of Regu-
lation No 40/94 on the Community trade mark.