Case T-400/06: Action brought on 22 December 2006 — ZERO Industry v OHIM — zero International Holding (zerorh+)
Date: 2007-03-10
Institutions: Court of First Instance
Subjects: EU trade mark, European Union Intellectual Property Office, action for annulment (EU), optical industry, trade-mark law

C 56/30

EN

Official Journal of the European Union

10.3.2007

Action brought on 22 December 2006 — ZERO Industry v
OHIM — zero International Holding (zerorh+)

(Case T-400/06)

(2007/C 56/59)

Language in which the application was lodged: English

The applicant claims that the Board erred in its interpretation of
the above provision insofar as it didn't take into account the
visual, phonetic and conceptual differences between the goods
to which the conflicting trade marks relate.

Parties

Action brought on 2 January 2007 — Apache Footwear
and Apache II Footwear v Council

Applicant: ZERO Industry Srl (Como, Italy) (represented by: M.
Rapisardi, lawyer)

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

Other party to the proceedings before the Board of Appeal: zero Inter-
national Holding GmbH & Co. KG (Bremen, Germany)

(Case T-1/07)

(2007/C 56/60)

Language of the case: English

Form of order sought

Parties

— Annul decision R0958/2005-1 of the First Board of Appeal
of
the Office for Harmonisation in the Internal Market,
of 5 October 2006, notified to the applicant on 23 October
2006;

— definitively reject the opposition brought by the defendant
against the registration of Community trade mark applica-
tion No 2004547, on behalf of Zero Industry Srl;

— order the Office for Harmonisation in the Internal Market to
proceed with the registration of the CTM lodged by ZERO
Industry Srl;

— order the Office for Harmonisation in the Internal Market or
any unsuccessful party to pay,
jointly or severally, to the
applicant the costs, expenses and fees, incurred in both the
present proceedings and the opposition and appeal proceed-
ings before the Office for Harmonisation in the Internal
Market.

Pleas in law and main arguments

Applicants: Apache Footwear Ltd (Guangzhou, China) and
Apache II Footwear Ltd (Qingyuan, China) (represented by: O.
Prost and S. Ballschmiede, lawyers)

Defendant: Council of the European Union

Form of order sought

— Annul Article 1 of Council Regulation (EC) No 1472/2006
of 5 October 2006 (1), imposing a definitive anti-dumping
duty and collecting definitively the provisional duty imposed
on imports of certain footwear with uppers of
leather
originating in the People's Republic of China and Vietnam
as long as it imposes 16.5 % duty on imports of products
manufactured by the applicant;

— ask the Council to pay the costs.

Applicant for the Community trade mark: the applicant

Pleas in law and main arguments

Community trade mark concerned: the figurative mark ‘zerorh+’ for
the goods in classes 9, 18 and 25 — application No 2004547

Proprietor of the mark or sign cited in the opposition proceedings:
zero International Holding GmbH & Co. KG

Mark or sign cited: the national figurative mark ‘zero’ for goods
in classes 18 and 25 and the national word mark ‘zero’ for
goods in class 9

Decision of the Opposition Division: Opposition upheld

Decision of the Board of Appeal: Appeal dismissed

in law:

Pleas
No 40/94

Infringement of Article 8(1)(b) of Regulation

By the present application, the applicants seek partial annul-
ment, pursuant to Article 230(4) EC, of the contested regulation
to the extent that it imposes definitive anti-dumping duties on
their imports into the European Union.

The applicants advance three pleas in law in support of their
claims:

First, the applicants submit that the Council, when examining
whether the applicants met the criteria to be granted Market
Economy Treatment (‘MET’), pursuant to Article 2(7)(b) and (c)
of Regulation (EC) No 384/96 (hereinafter,
‘the Basic Regu-
lation’), violated the latter, as well as its obligation of motivation
under Article 253 EC, insofar as it allegedly failed to examine
whether the applicants were subject to significant state interfer-
ence.