Case T-21/07: Action brought on 29 January 2007 — L'Oréal v OHIM — Spa Monopole (SPALINE)
Date: 2007-03-24
Institutions: Court of First Instance
Subjects: EU trade mark, European Union Intellectual Property Office, action for annulment (EU), cosmetic product, trade-mark law

24.3.2007

EN

Official Journal of the European Union

C 69/23

— order that the parties shall bear their own costs of these
proceedings and of those before the European Union Civil
Service Tribunal.

Action brought on 29 January 2007 — L'Oréal v OHIM —
Spa Monopole (SPALINE)

(Case T-21/07)

(2007/C 69/51)

Pleas in law and main arguments

Language in which the application was lodged: English

By the judgment of 14 November 2006, the setting-aside of
which is claimed in the present appeal, the Civil Service Tribunal
(CST) annulled the Commission's decisions of 30 November
2004 and 20 February 2005 calculating the applicant's years of
pensionable service following the transfer to the Community
scheme of the actuarial equivalent of the pension rights she had
acquired in Greece.

In support of the application to set aside the judgment, the
Commission raises a single ground of appeal alleging infringe-
ment of Regulations No 1103/97 (1) and No 974/98 (2) and of
the GIP of Article 11 of Annex VIII (3). The Commission
submits that
the premiss on which the CST's reasoning is
entirely based, arises from an erroneous interpretation of the
scope of Regulation No 1103/97. The Commission maintains
that, contrary to the CST's finding, the purpose of the regulation
in question is the maintenance of contractual commitments
undertaken by private parties and not those undertaken by
public bodies. It argues also that, in any case, that statement is
irrelevant to these proceedings on the ground that the Commis-
sion had undertaken no commitment in respect of Mrs Chat-
ziioannidou at the date of the entry into effect of the euro and,
therefore,
the principle of continuity of contracts stated in
Article 3 of Regulation No 1103/97 was not, in law, applicable
to this case. On the contrary, Regulation No 974/98, above all
Article 14 thereof, should, in the Commission's submission, be
applied in this case and the GIP should be read in the light
thereof. Consequently, in the case of a transfer, after the intro-
duction of the euro, of pension rights acquired in Greece, a
country which had adopted the euro, the provision of Article 4
(4) of the GIP laying down the detailed rules for the conversion
into euros of amounts transferred in a currency other than the
euro,
is not applicable. The Commission also claims that,
contrary to the CST's decision, because of the sharing of the
powers under Article 11(2) of Annex VIII to the Staff Regula-
tions between the Commission and the national authorities, Mrs
Chatziioannidou could not complain of
the Commission's
method of calculating the amount of the actuarial equivalent
transferred to the Commission by the Greek authorities because
they alone had the power to select an appropriate method, the
Greek authorities having already transferred to the Communities'
account an amount already denominated in euros.

(1) Council Regulation (EC) No 1103/97 of 17 June 1997 on certain

provisions relating to the euro (OJ 1997 L 162, p. 1).

(2) Council Regulation (EC) No 974/98 of 3 May 1998 on the euro (OJ

1998 L 139, p. 1).

(3) General Implementing Provisions of Articles 11 and 12 of Annex
VIII to the Staff Regulations, as amended by Council Regulation (EC,
Euratom) No 723/2004 of 22 March 2004 (OJ 2004 L 124, p. 1).

Parties

Applicant: L'Oréal SA (Paris, France) (represented by: E. Baud,
lawyer)

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

Other party to the proceedings before the Board of Appeal: SA Spa
Monopole, Compagnie fermière de Spa, en abrégé SA Spa
Monopole NV (Spa, Belgium)

Form of order sought

— Annul the decision of the First Board of Appeal of the
Office for Harmonisation in the Internal Market
(Trade
Marks and Designs) of 18 October 2006 in Case R
415/2005-1;

— order that the costs of the proceedings be borne by the

defendant and, if appropriate, the intervener.

Pleas in law and main arguments

Applicant for the Community trade mark: The applicant

Community trade mark concerned: The community word mark
‘SPALINE’ for the goods in class 3 (bath and shower soaps, skin
moisturizers, body lotions, skin toners, astringents, skin and
body cleansers, facial masks, scrubs and fragrance products) —
application No 989 236

Proprietor of the mark or sign cited in the opposition proceedings: SA
Spa Monopole NV

Mark or sign cited: The national and international word and
figurative marks ‘SPA’,
‘SPA SKIN CARE’ and ‘Les
Thermes de Spa’ for goods in classes 3, 32, 42

‘LIP SPA’,

Decision of the Opposition Division: Opposition upheld

Decision of the Board of Appeal: Appeal dismissed

Pleas in law: The applicant develops one single plea in law in
support of its application, on the basis of which it claims that
the contested decision infringes Article 8(5) of Council Regu-
lation (EC) No 40/94.

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.