Case T -73/06: Action brought on  28 February 2006  — Cassegrain v 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 108/23

Pleas in law and main arguments

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

and

international

organisations. The

represented by the European
The European Community,
Commission, concluded a contract with the defendant which
fell under the provisions of the special programme with third
countries
contract
concerned in particular the carrying out of a project entitled
‘Demonstration of closed-loop procedures in electroplating and
metal chemistry’ and should have been completed within 30
months of 1 November 1998. In the context of the contract,
the Commission undertook to contribute financially to the
proper carrying out of the project with an amount of 50 % of
the allowable full costs and 100 % of the additional costs up to
EUR 538 000.

In May 1999 the company which was coordinating the work
became insolvent and suspended performance of the project
which had begun on 5 February 1999. It was not possible to
find another coordinator, despite the efforts of certain of the
remaining members of
the consortium. Subsequently the
Commission decided to terminate the contract after it ascer-
tained that it would not be possible for the remaining members
of the consortium to carry out the project. The Commission
notified its decision to the defendant by a letter of 16 June
2000, asking the defendant to submit a cost statement and
technical report on the work carried out between February and
May 1998.

for the period
The defendant submitted a cost statement
the Commission decided to
1.11.1998 to 30.4.2000, but
proceed to assess the cost of personnel only for the period
February to May 1999, which it considers constitutes the
period of the actual duration of the programme, and to include
the cost of equipment. On the basis of those calculations, the
Commission accepted costs of EUR 23 404,72 and by this
of
application
reimbursement
EUR 31 965,28, which constitutes
the
advance it had paid to the defendant,
together with the
payment of interest owed on that amount in accordance with
the relevant provisions .

of
amount
the remainder of

seeks

an

Form of order sought

— Annul the decision of the Second Board of Appeal of the
(Trade
and Designs) of 30 November 2005 (Case

Office for Harmonisation in the Internal Market
Marks
0179/2005-2);

— Order the defendant to pay the costs.

Pleas in law and main arguments

Community trade mark concerned: three-dimensional mark in the
form of a section of a wind turbine for goods in Class 7 —
Application No 2496743

Decision of the Examiner: Rejection of the application

Decision of the Board of Appeal: Dismissal of the appeal

Pleas in law: Infringement of Article 7(1)(b) of Council Regu-
lation No 40/94 on the ground that the shape of the product
covered by the mark is outside the usual range of forms. The
three-dimensional mark is therefore distinctive.

Infringement of Article 7(3) of the Regulation inasmuch as the
Board of Appeal, after considering the circumstances, should
have invited the applicant to provide further opinions, if this
could have led to constituting evidence for the purpose of
Article 7(3).

Action brought on 28 February 2006 — Cassegrain v
OHIM

(Case T -73/06)

(2006/C 108/43)

Action brought on 27 February 2006 — ENERCON v
OHIM

Language in which the application was lodged: French

(Case T-71/06)

(2006/C 108/42)

Parties

Applicant:
Coursin and T. van Innis, lawyers)

Jean Cassegrain (Paris, France)

(represented by: Y.

Language of the case: German

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

Parties

Form of order sought

The applicant claims that the Court should:

Applicant: ENERCON GmbH (Aurich, Germany) (represented by
R. Böhm, lawyer)

— Primarily, annul the decision taken and order OHIM to pay

the costs;

C 108/24

EN

Official Journal of the European Union

6.5.2006

— Alternatively, appoint an expert or a body of experts with
responsibility for giving the Court guidance on whether or
on what conditions the shape of a manufactured good or
the representation of its outline can have as much influence
on the public's memory of it as an accompanying term, as
an indication of its business origin, and reserve the costs.

clothing, namely jackets,
jerseys,
shirts, pants, blouses, tights, shorts, hats, caps, sweatbands,
headbands, gloves, belts, shoes, boots, socks and aprons
(Class 25);

sweatshirts,

raincoats,

— order OHIM to pay the costs of this application.

Pleas in law and main arguments

Pleas in law and main arguments

Community trade mark concerned: Figurative trade mark repre-
senting a bag in respect of goods in Class 18 (Application No
003598571)

Decision of the Examiner: Registration refused.

Decision of the Board of Appeal: Appeal dismissed.

Pleas in law: Infringement of Article 4 and Article 7(1)(b) of
Council Regulation No 40/94. The applicant argues that the
trade mark has enough distinctive character to distinguish and
characterise a bag or a range of bags from one undertaking
from those from other undertakings.

Applicant for the Community trade mark: The applicant

Community trade mark concerned: The word mark ‘SHIFT’ for
goods in classes 9, 16, 18 and 25 — application No 2419349

Proprietor of the mark or sign cited in the opposition proceedings:
Lloyd Lifestyle Limited

Mark or sign cited: The Community figurative mark and earlier
non-registered work mark ‘Swift’ and the national figurative
mark ‘Swift leathers’ for goods in classes 9 and 25

Decision of the Opposition Division: Refuses registration

Decision of the Board of Appeal: Annuls the contested decision
insofar as it rejected the application for ‘pressure air gauges’
and goods in classes 16 and 18; confirms the contested deci-
sion for the remainder

Action brought on 3 March 2006 — Fox Racing/OHIM

Pleas in law: Violation of Article 8(1)(b) of Council Regulation
(EC) No 40/94.

(Case T-74/06)

(2006/C 108/44)

Language in which the application was lodged: English

Action brought on 24 February 2006 — Plásticos
Españoles (Aspla) v Commission

Parties

Applicant: Fox Racing Inc. (Morgan Hill, USA) [represented by:
P. Brownlow, Solicitor]

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

(Case T-76/06)

(2006/C 108/45)

Language of the case: Spanish

Other party to the proceedings before the Board of Appeal: Lloyd IP
Limited (Penrith, United Kingdom)

Parties

Form of order sought

— annul the decision of the First Board of Appeal of the
Office for Harmonisation in the Internal Markets (Trade
Marks and Designs) (‘OHIM’), of 8 December 2005 (Case R
1180/2004 — 1) in part, insofar as it rejected the applica-
tion in respect of motorcycle and safety helmets and protec-
tive clothing for motorcyclists and cyclists (Class 9) and

Applicant: Plásticos Españoles S.A. (Aspla) (Torrelavega, Spain)
(represented by: E. Garayar and A. García Castillo, lawyers)

Defendant: Commission of the European Communities

Form of order sought

— declare the present action for annulment admissible;