Case T-23/07: Action brought on 5 February 2007 — Borco-Marken-Import Matthiesen v OHIM (α)
Date: 2007-03-24
Institutions: Court of First Instance
Subjects: EU trade mark, European Union Intellectual Property Office, action for annulment (EU), alcoholic beverage, trade-mark law

C 69/24

EN

Official Journal of the European Union

24.3.2007

The applicant first argues that the contested decision failed to
properly assess the requirements for the application of Article 8
(5) of the CTMR, insofar as it did not take into consideration
and therefore totally disregarded the descriptive and generic
character of
in relation to cosmetics in the
Benelux territory.

the word ‘spa’

Pleas in law and main arguments

Community trade mark concerned: The figurative mark ‘α’ for goods
in Class 33 (Application No 4 634 663).

In particular, the applicant submits that the contested decision
did not correctly assess several requirements provided for under
Article 8(5) of the CTMR since, contrary to the findings of the
First Board of Appeal, the signs at stake are not similar visually,
phonetically or conceptually for the relevant consumer to estab-
lish a link between them. Moreover, the applicant suggests that
the use of the ‘SPALINE’ Community trade mark is not capable
of
the earlier
Benelux trade mark ‘SPA’ and, finally, that it is not used without
due cause.

taking unfair advantage of

the reputation of

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) and (c) of Regulation
(EC) No 40/94 (1),
is wrongly held that absolute
grounds for refusal exist. Furthermore, the scope and meaning
of Article 12 of Regulation (EC) No 40/94 are misconstrued.

in that

it

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

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

Action brought on 5 February 2007 — Borco-Marken-
Import Matthiesen v OHIM (α)

(Case T-23/07)

(2007/C 69/52)

Language of the case: German

Action brought on 30 January 2007 — Iride and Iride
Energia v Commission

(Case T-25/07)

(2007/C 69/53)

Language of the case: Italian

Parties

Applicant: Borco-Marken-Import Matthiesen GbmH & Co. KG
(Hamburg, Germany) (represented by M. Wolter, lawyer)

Parties

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

Applicants: Iride and Iride Energia (Turin, Italy) (represented by:
L.G. Radicati di Brozolo, M. Merola and C. Bazoli, avvocati)

Defendant: Commission of the European Communities

Form of order sought

— Annul the decision of the Fourth Board of Appeal of the
Office for Harmonisation in the Internal Market of 30
November 2006 in Case R 0808/2006-4;

— Declare that the provisions of Article 7(1)(b) and (c) and of
Article 7(2) of Regulation (EC) 40/94 do not preclude publi-
cation of the mark applied for in respect of goods in Class
33 (‘alcoholic beverages (excluding beer), wines, sparkling
wines and beverages containing wine’);

Forms of order sought

The applicants claim that the Court should:

— declare that the Decision is void in so far as it classes the
measures as State aid, and in so far as it suspends payment
of the aid until such time as Italy has provided evidence that
AEM Torino has refunded the aid declared to be unlawful
and incompatible with Decision 2003/193/EC of 5 June
2002 concerning tax relief for former municipal administra-
tive bodies;

— Order the Office for Harmonisation in the Internal Market

to pay the costs.

— order the Commission to pay the costs.