Case T-106/07: Action brought on 11 April 2007 — Alcon v OHIM — *Acri.Tec (BioVisc)
Date: 2007-06-09
Institutions: Court of First Instance
Subjects: EU trade mark, European Union Intellectual Property Office, action for annulment (EU), pharmaceutical product, trade-mark law

9.6.2007

EN

Official Journal of the European Union

C 129/19

Secondly, the applicant submits that the Commission violated
the notion of Community interest and committed manifest
errors of appraisal, erred in law and violated its duty to state
reasons.

(1) Commission Regulation (EC) No 773/2004 of 7 April 2004 relating
to the conduct of proceedings by the Commission pursuant to Arti-
cles 81 and 82 of the EC Treaty (OJ 2004 L 123, p. 18).

Decision of the Board of Appeal: Dismissal of the appeal

Pleas in law: Infringement of Article 8(1)(b) of Council Regu-
lation No 40/94 as the Board of Appeal did not correctly assess
the similarity of the goods and services and the trade marks in
question.

Action brought on 2 April 2007 — MarketTools v OHIM
— Optimus-Telecomunicações (ZOOMERANG)

(Case T-105/07)

(2007/C 129/33)

Action brought on 11 April 2007 — Alcon v OHIM —
*Acri.Tec (BioVisc)

(Case T-106/07)

(2007/C 129/34)

Language in which the application was lodged: English

Language in which the application was lodged: English

Parties

Parties

Applicant: MarketTools, Inc. (San Francisco, United-States) (repre-
sented by: W. von der Osten-Sacken and A. González Hähnlein,
lawyers)

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

Other party to the proceedings before the Board of Appeal: Optimus-
Telecomunicações, SA (Maia, Portugal)

Form of order sought

— Annul

the decision of

the Second Board of Appeal of

25 January 2007 (Appeal No R 253/2006-2);

— order Optimus-Telecomunicações S.A. to bear the costs of

the proceedings.

Pleas in law and main arguments

Applicant for the Community trade mark: The applicant

Community trade mark concerned: The word mark ‘ZOOMERANG’
for goods and services in classes 9, 35 and 42 — application
No 1 603 950

Proprietor of the mark or sign cited in the opposition proceedings:
Optimus-Telecomunicações, SA

Mark or sign cited: The national word and figurative marks
‘BOOMERANG’ for goods and services in classes 9, 16, 35, 37,
38 and 42

Applicant: Alcon, Inc. (Hünenberg, Switzerland) (represented by:
M. Graf, lawyer)

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

Other party to the proceedings before the Board of Appeal: *Acri.Tec
AG Gesellschaft für ophthalmologische Produkte (Hennigsdorf,
Germany)

Form of order sought

— The decision of the Second Board of Appeal of the Office
for Harmonisation in the Internal Market (Trade Marks and
Designs) of 8 February 2007 in Case R 660/2006-2 Alcon,
Inc. v. OHIM (BioVisc) be annulled insofar as it dismissed
the opposition of Alcon,
Inc. against CTM application
3 651 809 ‘BioVisc’;

— the Office for Harmonisation be ordered to bear its own

costs and to pay those of the applicant.

Pleas in law and main arguments

Applicant for the Community trade mark: *Acri.Tec AG Gesellschaft
für ophthalmologische Produkte

Community trade mark concerned: The word mark ‘BioVisc’ for
goods in class 5 — application No 3 651 809

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

Mark or sign cited: The Community and international word
marks ‘PROVISC’ and ‘DUOVISC’ for goods in class 5

Decision of
entirety

the Opposition Division: Opposition upheld in its

Decision of
entirety

the Opposition Division: Opposition upheld in its

C 129/20

EN

Official Journal of the European Union

9.6.2007

Decision of the Board of Appeal: Annulment of the Opposition
Division's decision and rejection of the opposition in its entirety

Action brought on 8 April 2007 — Spira v Commission

Pleas in law: The trade marks in question are confusingly similar
and the goods applied for are identical to those covered by the
opposition trade marks.

(Case T-108/07)

(2007/C 129/36)

Language of the case: English

Appeal brought on 16 April 2007 by Francisco Rossi
Ferreras against the judgment of the Civil Service Tribunal
delivered on 1 February 2007 in Case F-42/05 Rossi
Ferreras v Commission

(Case T-107/07 P)

(2007/C 129/35)

Language of the case: French

Parties

Applicant: Diamanthandel A. Spira BVBA (Antwerpen, Belgium)
J. Bourgeois, Y. van Gerven, F. Louis and
(represented by:
A. Vallery, lawyers)

Defendant: Commission of the European Communities

Form of order sought

Parties

Appellant: Francisco Rossi Ferreras (Luxemburg, Grand Duchy of
Luxembourg) (represented by F. Frabetti, lawyer)

Other party to the proceedings: Commission of
Communities

the European

Form of order sought by the appellant

— set aside the judgment of

the Civil Service Tribunal of

1 February 2007 in Case F-42/05;

— grant

the forms of order

sought by the appellant at
first instance and, primarily, declare the application in Case
F-42/05 to be admissible and well founded;

— in the alternative,

remit

the case to the Civil Service

Tribunal;

— make an order as to costs, expenses and fees and order the

Commission to pay them.

Pleas in law and main arguments

In his appeal, the appellant seeks the annulment of the judg-
ment of the Civil Service Tribunal dismissing his application for
the annulment of his career development report for the period
from 1 January to 31 December 2003 and an order requiring
the Commission to compensate him for the damage that he
claims to have suffered.

In support of his appeal, the appellant claims that the Civil
Service Tribunal made several errors of law in its consideration
of the two pleas in law put forward at first instance.

— Annul

the

Commission

January
2007, pursuant
to Article 7(2) of Council Regulation
No 773/2004, in case COMP/38.826/B-2 — Spira/De Beers/
DTC Supplier of Choice;

decision

26

of

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

Pleas in law and main arguments

The applicant contests the Commission's decision of 26 January
2007 in competition Case COMP/38.826/B-2 — Spira/De
Beers/DTC Supplier of Choice, by which the Commission
rejected the applicant's complaint regarding violations of Arti-
cles 81 and 82 EC in connection with the Supplier of Choice
system applied by the De Beers Group for the distribution of
rough diamonds, with the reasoning that there is not sufficient
Community interest to act further on the applicant's complaint.

The applicant alleges that De Beers — a producer of rough
diamonds who, according to the applicant, was mainly involved
upstream with the sale of rough diamonds — is trying through
the
its Supplier of Choice system to extend its control of
market to cover the entire diamond pipeline from mine to
consumer, i.e. also the downstream markets.

In support of its application, the applicant invokes three pleas
in law.

the applicant claims that

Firstly,
the Commission failed to
honour its duty to conduct a careful and impartial investigation
of the complaint and to examine with proper care and imparti-
ality the anticompetitive practices denounced in the complaint.

Secondly, the applicant alleges that the Commission could not
claim that there was a lack of sufficient Community interest to
act on the complaint, in light of the size of the undertaking
involved, the geographic scope of the anticompetitive practices
and the damage to competition and the internal market caused
by the infringements.