Case T-87/06: Action brought on  14 March 2006  — L'Oréal/OHIM
Date: 2006-05-06
Institutions: Court of First Instance
Subjects: EU trade mark, European Union Intellectual Property Office, action for annulment (EU), trade-mark law

6.5.2006

EN

Official Journal of the European Union

C 108/27

Action brought on 13 March 2006 — Onderlinge Waar-
borgmaatschappij Azivo Algemeen Ziekenfonds De
Volharding v Commission

(Case T-84/06)

(2006/C 108/48)

Language of the case: Dutch

Parties

Claimant: Onderlinge Waarborgmaatschappij Azivo Algemeen
(The Hague, Netherlands)
Ziekenfonds De Volharding U.A.
(represented by: G. van der Wal and T. Boesman, lawyers)

Defendant: Commission of the European Communities

Form of order sought

— Annul the Commission decision of 3 May 2005 in Cases

N 541/2004 and N 542/2004;

— Order the Commission to pay the costs of the proceedings.

Pleas in law and main arguments

The claimant is a healthcare insurance body with approxi-
mately 150 000 affiliated policyholders. Those policyholders
require, as a general rule, more extensive healthcare services
than the average person insured in the Netherlands. As a result,
the claimant has over an extended period of
time been
achieving less positive results than other healthcare insurance
bodies. The claimant argues that these negative results stem
from shortcomings in the equalisation system.

In its action the claimant challenges the Commission deci-
sion (1) to authorise under Articles 87 EC and 88 EC the aid
measures which the Netherlands notified in the context of the
new healthcare insurance scheme. Those aid measures relate to
the retention of financial reserves by healthcare insurance funds
and the risk equalisation system (2).

the Commission ought

The claimant submits further that, in view of the complexity of
the aid scheme notified,
to have
initiated the formal investigation procedure set out in Article
88(2) EC. The Commission must at any rate have had serious
difficulties during the initial
investigation procedure under
Article 88(3) EC in determining whether the aid scheme was
compatible with the common market in view of the fact that it
did not have sufficient information at its disposal.

In conclusion, the claimant contends that,
in adopting the
contested decision, the Commission improperly failed to take
account of the fact that the new Netherlands healthcare scheme
is incompatible with the non-life insurance directive (3) and
with Articles 43 EC and 49 EC. The claimant particularly refers
in this connection to the provisions of the new healthcare
scheme relating to the prohibition of premium differentials, the
duty of acceptance and the risk equalisation system. The clai-
mant also takes the view that the Commission has, unlawfully
and contrary to Article 253 EC, failed to provide reasons to
substantiate its view that the third non-life insurance directive
and Articles 43 EC and 49 EC, taken in conjunction with Arti-
cles 87 EC and 86(2) EC, do not stand in the way of the noti-
fied State aid.

(1) OJ 2005 C 324, p. 28.
(2) Aid measures N 541/2004 and N 542/2004.
(3) Council Directive 92/49/EEC of 18 June 1992 on the coordination
of laws, regulations and administrative provisions relating to direct
insurance other
and amendingDirectives
73/239/EEC and 88/357/EEC (third non-life insurance directive) (OJ
L 228, p. 1).

than life

assurance

Action brought on 14 March 2006 — L'Oréal/OHIM

(Case T-87/06)

(2006/C 108/49)

Language in which the application was lodged: English

According to the claimant, the Commission committed errors
of appraisal
in regard to the operation of the equalisation
system and inadequately investigated the matter. The claimant
submits that the decision is in this respect at variance with
Article 86(2) EC and is incomprehensible, or at the very least
inadequately reasoned.

Parties

improperly
The Commission has also, the claimant alleges,
approved the risk equalisation system on the basis of Article
86(2) EC. Because of
the shortcomings in the equalisation
system the compensation provided for a number of healthcare
insurers is, it submits, higher than is necessary to cover the
costs of meeting their public service obligation, whereas the
position for a number of other healthcare insurers is that they
are inadequately compensated by reason of those shortcom-
ings.

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

C 108/28

EN

Official Journal of the European Union

6.5.2006

Form of order sought

Form of order sought

— Annulment of the decision of the Fourth Board of Appeal
of the OHIM of 9 January 2006 regarding the appeal R
to opposition proceedings No
216/2003-4 relating
B216087
application No
1011626);

trade mark

(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.

— Annul the decision of the Second Board of Appeal of 11

January 2006 (Case R 616/2004-2) and

— order the defendant to pay the costs.

Pleas in law and main arguments

Community trade mark concerned: The word mark ‘SAFETY 1ST’
for goods in classes 12, 20, 21 and 28 — application No 2
258 697

Pleas in law and main arguments

Decision of the examiner: Refusal of the application

Applicant for the Community trade mark: The applicant

Decision of the Board of Appeal: Dismissal of the appeal

Community trade mark concerned: The word mark ‘FLEXI DESIGN’
for goods in class 3 — application No 1011626

Pleas in law: Infringement of Article 7(1)(b) of Council Regu-
lation No 40/94 as the trade mark applied for is not devoid of
any distinctive character in respect of the goods applied for.

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

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

Decision of the Opposition Division: Opposition upheld for all the
contested goods

Action brought on 20 March 2006 — TOMORROW
FOCUS v OHIM

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 risk of confusion.

Action brought on 17 March 2006 v Dorel

Juvenile

Group/OHIM

(Case T-88/06)

(2006/C 108/50)

Language of the case: English

Parties

Applicant: Dorel
sented by: Gesa Simon, lawyer]

Juvenile Group,

Inc.

(Canton, USA) [repre-

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

(Case T-90/06)

(2006/C 108/51)

Language in which the application was lodged: German

Parties

Applicant: TOMORROW FOCUS AG (Munich, Germany) (repre-
sented by: U. Gürtler, lawyer)

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

Other party to the proceedings before the Board of Appeal of OHIM:
Information Builders (Netherlands) B.V.
(Amstelveen, Nether-
lands)

Form of order sought

— annul the decision of the First Board of Appeal of the
defendant of 17 January 2006 (Case R 116/2005-1) inas-
much as that decision rejects application No 002382455
for Community trade mark ‘Tomorrow Focus’;

— amend the decision of the First Board of Appeal of the
defendant of 17 January 2006 (Case R 116/2005-1) in such
a way that registration of application No 002382455 for
Community trade mark ‘Tomorrow Focus’ is also granted in
respect of the goods ‘computers and data processing appa-
ratus’ and the services ‘computer programming and design
of computer programs (computer software); maintenance
and on-line
and upgrading of
upgrading services’;

computer programs,

— order the defendant to pay the costs.