Case T-63/07: Action brought on 1 march 2007 — Mülhens v OHIM — Exportaciones Aceiteras Fedeoliva (tosca de FEDEOLIVA)
Date: 2007-04-28
Institutions: Court of First Instance
Subjects: EU trade mark, European Union Intellectual Property Office, action for annulment (EU), cosmetic product, trade-mark law

C 95/50

EN

Official Journal of the European Union

28.4.2007

— annul memorandum No 00325 of 16.1.2007 of the Euro-
pean Commission, Directorate General for Regional Policy
— Programmes and projects in Cyprus, Greece, Hungary,
Italy, Malta and the Netherlands — concerning payments by
the Commission which differ from the amount requested.
Ref. Programma POR Campania 2000-2006 (No CCI 1999
IT 161 PO 007);

— annul memorandum No 00425 of 18.1.2007 of the Euro-
pean Commission, Directorate General for Regional Policy
— Programmes and projects in Cyprus, Greece, Hungary,
Italy, Malta and the Netherlands — concerning payments by
the Commission which differ from the amount requested.
Ref. Programma DOCUP Toscana Ob. 2 (No CCI 1999 IT
162 DO 001);

— annul memorandum No 00427 of 18.1.2007 of the Euro-
pean Commission, Directorate General for Regional Policy
— Programmes and projects in Cyprus, Greece, Hungary,
Italy, Malta and the Netherlands — concerning payments by
the Commission which differ from the amount requested.
Ref. Programma POR Puglia (No CCI 1999 IT 161 PO 009);

— annul all related and prior acts and, consequently, order the
Commission of the European Communities to pay the costs.

Pleas in law and main arguments

The pleas in law and main arguments are similar to those relied
on in Case T-345/04 Italy v Commission (1).

— order each of the parties to bear its own costs relating to
these proceedings and the proceedings before the Civil
Service Tribunal.

Pleas in law and main arguments

By its judgment of 13 December 2006 in Case F-17/05 de Brito
Sequeira Carvalho v Commission, the Civil Service Tribunal (CST)
upheld in part the action brought by the applicant at first
instance and annulled the Commission decision of 13 July 2004
prohibiting the applicant's access to its buildings and the deci-
sions automatically extending his sick leave.

The Commission bases the appeal, first, on the fact that the
Tribunal adjudicated ultra petita by annulling the Commission
decision of 13 July 2004 prohibiting the applicant's access to its
buildings and, second, on the fact that the judgment under
appeal infringed Community law. The Commission claims that
the Tribunal distorted the facts of the case, that it erred in law
in interpreting the obligation to state the reasons on which a
decision is based and that it infringed the fifth subparagraph of
Article 59(1) of the Staff Regulations. The Commission further
maintains
that by the interpretation in the judgment of
Article 59(5) of the Staff Regulations, the Tribunal distorted the
arbitration procedure provided for in that provision.

(1) OJ C 262, 23.10.04, p. 55.

Action brought on 1 march 2007 — Mülhens v OHIM —
Exportaciones Aceiteras Fedeoliva (tosca de FEDEOLIVA)

Appeal brought on 28 February 2007 by the Commission
of the European Communities against the judgment of the
Civil Service Tribunal delivered on 13 December 2006 in
Case F-17/05 de Brito Sequeira Carbalho v Commission

Parties

(Case T-63/07)

(2007/C 95/101)

Language in which the application was lodged: English

(Case T-62/07 P)

(2007/C 95/100)

Language of the case: French

Parties

Applicant: Mülhens GmbH & Co. KG (Köln, Germany) (repre-
sented by: D. Eickemeier, lawyer)

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

Other party to the proceedings before the Board of Appeal: Exporta-
ciones Aceiteras Fedeoliva, A. I. E. (Jaen, Spain)

Appellant: Commission of the European Communities (repre-
sented by: D. Martin, Agent, and C. Falmagne, lawyer)

Form of order sought

Other party to the proceedings:
Carvalho

José Antonio de Brito Sequeira

Form of order sought by the appellant

— Set aside the judgment of

the Civil Service Tribunal of

13 December 2006 in Case F-17/05;

— dismiss the action brought by Mr Sequeira;

— Annul the decision of the Second Board of Appeal of the
defendant dated 18 December 2006 in Case R 761/2006-2;

— reject the application of the Community trade mark No 3

467 651.

Pleas in law and main arguments

Applicant for the Community trade mark: Exportaciones Aceiteras
Fedeoliva, A. I. E.

28.4.2007

EN

Official Journal of the European Union

C 95/51

Community trade mark concerned: The figurative Community trade-
mark ‘tosca de FEDEOLIVA’ for goods and services in classes 16,
29, 35 and 39 Application No 3 467 651

mark (1), inasmuch as, according to the applicant, the designa-
tion ‘350’, in relation to the goods indicated, is neither descrip-
tive nor devoid of distinctive character.

Proprietor of the mark or sign cited in the opposition proceedings: The
applicant

Mark or sign cited: The community and national word marks
‘TOSCA’ for goods and services in class 3 (perfumeries, essential
oils, non-medicated toilet preparations and cosmetics, prepara-
tions for hair, toothpastes, toilet soaps)

Decision of the Opposition Division: Rejected the opposition

Decision of the Board of Appeal: Dismissed the appeal

Pleas in law: Infringement of Article 8(1)(b), 8(2)(c) and 8(5) of
Council Regulation (EC) No 40/94 (‘CTMR’) and of the essential
procedural requirements enshrined in Articles 43(1), 73 and 74
(1)(2) of the CTMR.

Action brought on 2 March 2007 — Agencja Wydawnicza
Technopol v OHIM — (‘350’)

(Case T-64/07)

(2007/C 95/102)

Language of the case: Polish

Parties

Applicant: Agencja Wydawnicza Technopol, Sp. z o. o. (Często-
chowa, Republic of Poland)
(represented by: D. Rzążewska,
lawyer)

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

Form of order sought

— set

aside

in its

entirety

the decision delivered on
21 December 2006 by the Fourth Board of Appeal of the
(Trade
Office for Harmonisation in the Internal Market
Marks and Designs) in Case No R 1033/2006-4;

— order the defendant to pay the costs of the proceedings.

Pleas in law and main arguments

Community trade mark concerned: word mark ‘350’ for goods in
Class 16

Decision of the Examiner: registration refused

Decision of the Board of Appeal: appeal dismissed

Pleas in law: incorrect application of the provisions of Article 7
(1)(b) and (c) of Regulation No 40/94 on the Community trade

(1) Council Regulation (EC) No 40/94 of 20 December 1993 (OJ 1994

L 11, p. 1).

Action brought on 2 March 2007 — Agencja Wydawnicza
Technopol v OHIM — (‘250’)

(Case T-65/07)

(2007/C 95/103)

Language of the case: Polish

Parties

Applicant: Agencja Wydawnicza Technopol, Sp. z o. o. (Często-
chowa, Republic of Poland)
(represented by: D. Rzążewska,
lawyer)

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

Form of order sought

— set

aside

in its

entirety

the decision delivered on
21 December 2006 by the Fourth Board of Appeal of the
Office for Harmonisation in the Internal Market
(Trade
Marks and Designs) in Case No R 1034/2006-4;

— order the defendant to pay the costs of the proceedings.

Pleas in law and main arguments

Community trade mark concerned: word mark ‘250’ for goods in
Class 16

Decision of the Examiner: registration refused

Decision of the Board of Appeal: appeal dismissed

Pleas in law: incorrect application of the provisions of Article 7
(1)(b) and (c) of Regulation No 40/94 on the Community trade
mark (1), inasmuch as, according to the applicant, the designa-
tion ‘250’, in relation to the goods indicated, is neither descrip-
tive nor devoid of distinctive character.

(1) Council Regulation (EC) No 40/94 of 20 December 1993 (OJ 1994

L 11, p. 1).