Case T-461/05: Action brought on  30 December 2005  — L' Oréal/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 74/26

EN

Official Journal of the European Union

25.3.2006

The following plea in law covers the alleged insufficiency of the
grounds of
the contested decision so far as concerns the
analysis of the effects of the measures alleged by the Commis-
sion. In addition, as part of that plea, the applicants accuse the
Commission of having made errors of fact and an erroneous
assessment of
the facts and of having contradicted in the
grounds of its decision.

In support of their alternative claim for the reduction of the
fine imposed by the Commission, the applicants rely on a plea
in law alleging infringement of Article 23(2) of Regulation No
1/2003 and of the Guidelines on the setting of fines (1) in the
application of those provisions by the Commission.

(1) Guidelines on the method of setting fines imposed pursuant to
Article 15(2) of Regulation No 17 and of Article 65(5) of the EC
Treaty (OJ C 9 of 14 January 1998, p. 3).

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

Decision of the Board of Appeal: Dismissal of the appeal

Pleas in law: The mark is in accordance with Article 7(1)(b) of
Council Regulation No 40/94 inherently distinctive for all the
goods covered by the application and if not so, it has acquired
distinctiveness through use in accordance with Article 7(3) of
the Regulation.

Action brought on 30 December 2005 — L' Oréal/OHIM

(Case T-461/05)

(2006/C 74/50)

Action brought on 29 December 2005 — Bang & Olufsen/
OHIM

Language in which the application was lodged: English

(Case T-460/05)

(2006/C 74/49)

Language of the case: English

Parties

Parties

Applicant: L'Oréal S.A. (Paris, France) [represented by: X. Buffet
Delmas d'Autane, lawyer]

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

Other party/parties to the proceedings before the Board of Appeal:
Revlon (Suisse) S.A. (Schlieren, Switzerland)

Applicant: Bang & Olufsen AS (Struer, Denmark) [represented
by: K. Wallberg, lawyer]

Form of order sought

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

Form of order sought

— The decision taken by the First Board of Appeal of the
(Trade
Office for Harmonisation in the Internal Market
Marks and Designs) on 22 October 2005 in case No.
R0497/2005-1 be annulled and

— the defendant pay the costs.

Pleas in law and main arguments

— Annulment of the decision of the Fourth Board of Appeal
of the OHIM of 17 October 2005 regarding the appeal R
0806/2002-4 relating to Opposition Proceedings No B
trade mark Application No
214 694
1 011 014);

(Community

— Order for all costs incurred in relation to all proceedings in
this matter (in particular, the costs of the action and the
appeal) to be awarded against the OHIM.

Pleas in law and main arguments

Applicant for the Community trade mark: The applicant

Community trade mark concerned: The word mark ‘FLEXI TOUCH’
for goods in class 3

Community trade mark concerned: Three-dimensional mark in
form of a vertical pencil-shaped loudspeaker on a low pedestal
for goods in classes 9 and 20 — application No 3 354 371

Proprietor of the mark or sign cited in the opposition proceedings:
Revlon (Suisse) S.A.

25.3.2006

EN

Official Journal of the European Union

C 74/27

Mark or sign cited: The national word mark ‘FLEX’ for goods in
classes 3 and 34

Decision of
entirety

the Opposition Division: Opposition upheld in its

Decision of the Board of Appeal: Dismissal of the appeal

Pleas in law: Infringement of Articles 15 and 43(2) of Council
Regulation No 40/94 as the evidence filed by Revlon (Suisse)
S.A. cannot be considered valid proof of genuine use of the
word mark ‘FLEX’ during the relevant period, neither in the UK
nor in France

Infringement of Article 8(1)(b) of the Regulation as there is no
similarity between the conflicting trade marks and consequently
no likelihood of confusion.

Action brought on 30 December 2005 — Toyoda Koki
Kabushiki Kaisha/OHIM

(Case T-462/05)

(2006/C 74/51)

Language of the case:English

Parties

Applicant: Toyoda Koki Kabushiki Kaisha (Aichi-Ken,
[represented by: J. F. Wachinger, lawyer]

Japan)

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

Form of order sought

Internal Market of 14 September 2005,
in Case R
1157/2004-1 to be void, to remand the case to the Board
of Appeal of the Office for Harmonisation in the Internal
Market for reconsideration, and for the issuance of a new
decision,

— impose the costs of the proceedings on the defendant.

Pleas in law and main arguments

Community trade mark concerned: The word mark ‘IFS’ for goods
in class 12 — application No 3 157 492

Decision of the examiner: Refusal of the application in respect of
all the designated goods

Decision of the Board of Appeal: Dismissal of the appeal

Pleas in law: Violation of Article 7(1)(b) and (c) of Council Regu-
lation No 40/94 because of amongst others a wrongful defini-
tion of the relevant public and an erroneous assumption of
descriptive meaning.

Action brought on 12 January 2006 — Republic of Poland
v Commission of the European Communities

(Case T-4/06)

(2006/C 74/52)

Language of the case: Polish

Parties

Applicant: Republic of Poland (represented by: Jarosław Pietras,
Agent of the Government)

Defendant: Commission of the European Communities

— Declare the decision taken by the First Board of Appeal of
the Office for Harmonisation in the Internal Market of 14
September 2005, in Case R 1157/2004-1 to be void and to
allow the registration of the word mark application No.
003157492 ‘IFS’ for the goods ‘steering and power steering,
both for vehicles and parts therefor, excluding independent
front suspension’ in the international class 12, referring to
the Nice Agreement Concerning the International Classifica-
tion of Goods and Services for the Purposes of the Registra-
tion of Marks,

Form of order sought

The applicant claims that the Court should:

— declare Article 2 of Commission Regulation (EC) No
1686/2005 of 14 October 2005 setting the production
levies and the coefficient for the additional levy in the sugar
sector for the 2004/05 marketing year (OJ 2005 L 271 of
15.10.2005, p. 12) to be invalid;

— or, in the alternative, declare the decision taken by the First
Board of Appeal of the Office for Harmonisation in the

— order the Commission of the European Communities to

pay the costs of the proceedings.