Case T-265/06: Action brought on 20 September 2006 — Lee/DE v OHIM — Cooperativa Italiana di Ristorazione (PIAZZA del SOLE)
Date: 2006-12-02
Institutions: Court of First Instance
Subjects: EU trade mark, European Union Intellectual Property Office, action for annulment (EU), catering industry, trade-mark law

C 294/54

EN

Official Journal of the European Union

2.12.2006

The first plea alleges infringement of an essential procedural
requirement in that, according to the applicant, the reasons put
forward by the Commission in support of its decision ulti-
mately not to award it the contract cannot be regarded as satis-
factory. It maintains that it was only when it requested the
Commission to do so, in a letter dated 17 July 2006, that the
latter clarified, by letter of 27 July 2006, that its decision was
based on Article 101 of Council Regulation No 1605/2002 (2).
In the applicant's opinion, it is not possible to ascertain from
the reasons put forward by the Commission in support of the
contested decision what prompted it to go back on its earlier
decision to award the applicant the contract. It submits that
that lack of precision in the Commission's reasoning is all the
more significant as the Commission resiled from its earlier offi-
cial position.

The second plea alleges infringement of Article 253 EC. The
applicant considers that, by withdrawing the invitation to
tender on the ground of insufficient competition, the Commis-
sion committed a manifest and serious error by putting
forward an imprecise and incomplete set of reasons since, on
previous occasions, the applicant has obtained a number of
contracts in cases where it was the only tenderer.

(1) Programme based on Council Regulation (EC, Euratom) No
99/2000 of 29 December 1999 concerning the provision of assis-
tance to the partner States in Eastern Europe and Central Asia (OJ
2000 L 12, p. 1).

(2) Council Regulation (EC, Euratom) No 1605/2002 of 25 June 2002
on the Financial Regulation applicable to the general budget of the
European Communities (OJ 2002 L 248, p. 1).

Action brought on 20 September 2006 — Lee/DE v OHIM
— Cooperativa Italiana di Ristorazione (PIAZZA del
SOLE)

(Case T-265/06)

(2006/C 294/111)

Language in which the application was lodged: French

Parties

Other party to the proceedings before the Board of Appeal of OHIM:
Cooperativa Italiana di Ristorazione Soc. coop.rl

Form of order sought

— annul and amend the decision of the Second Board of
Appeal of OHIM in so far as it confirmed the rejection of
the partial opposition lodged by the applicant against the
application for the Community mark ‘PIAZZA del SOLE’
No 1 518 901 and the rejection of Opposition No B
337 081;

— consequently, dismiss, in part, the registration of the Com-
munity mark ‘PIAZZA del SOLE’ No 1 518 901, in so far
as it designates the goods in Classes 21, 29, 30 and 42;

— order OHIM to pay all the costs.

Pleas in law and main arguments

Applicant for a Community trade mark: Cooperativa Italiana di
Ristorazione Soc. coop.rl

Community trade mark concerned: Word mark ‘PIAZZA del SOLE’
for goods and services in Classes 16, 21, 25, 29, 30, 35, 36
and 42 — Application No 1 518 901

Proprietor of the mark or sign cited in the opposition proceedings:
Applicant

Mark or sign cited in opposition: National and international word
marks ‘PIAZZA’ and ‘PIAZZA D'ORO’ for goods in Classes 21,
29, 30 and 42

Decision of the Opposition Division: Opposition rejected

Decision of the Board of Appeal: Appeal dismissed

in law: Breach of Article 8(1)(b) of Regulation No
Pleas
40/94 (1) in so far as the Board of Appeal,
in the contested
decision, made a number of errors in considering that there
was little distinctiveness as to the element common to the signs
in question, in so far as it did not draw the necessary conclu-
sions from its finding that the elements ‘D'ORO’ and ‘DEL
SOLE’ are common words and in so far as it considered that
the differences between the marks prevailed over the way the
marks were perceived.

Applicant: Sara Lee/DE NV (Utrecht, the Netherlands) (repre-
sented by: C. Hollier-Larousse, lawyer)

(1) Council Regulation (EC) No 40/94 of 20 December 1993 on the

Community trade mark (OJ 1994 L 11, p. 1).

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