Case T-163/07: Action brought on 8 May 2007 — SC Gerovital Cosmetics v OHIM — SC Farmec (GEROVITAL H3 Prof. Dr. A. Aslan)
Date: 2007-08-04
Institutions: Court of First Instance
Subjects: EU trade mark, European Union Intellectual Property Office, action for annulment (EU), cosmetic product, trade-mark law

4.8.2007

EN

Official Journal of the European Union

C 183/33

Order of the President of the Court of First Instance of
7 June 2007 — IMS v Commission

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

(Case T-346/06 R)

(Applications for interim measures — Application for suspen-
sion of operation of a measure — Directive 98/37/EC —
Admissibility — Prima facie case — Urgency — Balancing of
the interests involved)

(2007/C 183/64)

Language of the case: Italian

Parties

Applicant: Industria Masetto Schio Srl (IMS) (Schio, Italy) (repre-
sented by: F. Colonna and T. Romolotti, lawyers)

Defendant: Commission of the European Communities (repre-
sented by: C. Zadra and D. Lawunmi, Agents)

Re:

Application for the suspension of operation of Commission
Opinion C (2006) 3914 of 6 September 2006 concerning a
prohibition measure adopted by the French authorities relating
to certain IMS brand mechanical presses.

Operative part of the order

1. The operation of Commission Opinion C(2006) 3914 of
6 December 2006 concerning a prohibition measure adopted by
the French authorities relating to certain IMS brand mechanical
presses is suspended until the Court of First Instance has ruled on
the action in the main proceedings.

2. Costs are reserved.

Action brought on 8 May 2007 — SC Gerovital Cosmetics
v OHIM — SC Farmec (GEROVITAL H3 Prof. Dr. A. Aslan)

(Case T-163/07)

(2007/C 183/65)

Language in which the application was lodged: English

Parties

Applicant: SC Gerovital Cosmetics S.A.
(represented by: D. Boştinşă, lawyer)

(Bucharest, Romania)

Other party to the proceedings before the Board of Appeal: Farmec S.
A. (Cluj-Napoca, Romania)

Form of order sought

— The

invalidation of Decision of 27 February 2007
of the Second Board of Appeal of the Office for Harmonisa-
tion in the Internal Market (Trademarks and Designs)
in
Case R 271/2006-2 — GEROVITAL H3; and subsequently

— the

invalidation of Cancellation Division decision of
23 December 2005 in the proceedings for a declaration of
invalidity of OHIM reference number 872C 0000986 034,
CTM 986034 GEROVITAL H3;

— order that the costs of the proceedings be paid by the defen-

dant.

Pleas in law and main arguments

of

invalidity: The Community

the application for a
Registered Community trade mark subject of
declaration
figurative mark
containing word elements ‘GEROVITAL H3 Prof. Dr. A. Aslan’
for goods and services in Class 3 and 42 — application
No 986 034

Proprietor of the Community trade mark: The applicant

Party requesting the declaration of invalidity of the Community trade
mark: Farmec S.A.

Trade mark right of the party requesting the declaration of invalidity:
The figurative national trade mark ‘Gerovital H3 PROF. DR.
ANA ASLAN’ for certain goods in Class 3

Decision of
invalid in its entirety

the Cancellation Division: Declared the trade mark

Decision of the Board of Appeal: Dismissed the appeal.

Pleas in law: Infringement of Articles 52 and 53(2) of Council
Regulation No 40/94.

The applicant considers that the Romanian figurative mark it
was partially assigned — with respect
to specific products
provided in the assignment contract — by the holder of the
international and national trade mark registrations is an earlier
well known mark enjoying such reputation in more than one
Member State. Hence, it claims to be entitled to priority and
exclusivity for registration purposes.

C 183/34

EN

Official Journal of the European Union

4.8.2007

Also, contrary to the rights of the other party to the cancella-
tion and appeal proceedings (hereinafter, ‘Farmec’), the applicant
claims to have broader rights over the trade mark, both with
is entitled to
regards to the range of cosmetic products it
produce as to their composition. Based on the assumption that
the two companies enjoy equal and distinctive rights over the
trademark GEROVITAL H3 Prof. Dr. A. Aslan related to the
intensity of protection, the anteriority/precedence aspect referred
to by Farmec should have no bearing according to the appli-
cant.

Finally, the applicant submits that its ownership rights would be
seriously affected if faced to the impossibility to acquire interna-
tional recognition and protection of the rights deriving from the
assignment contract, even if it claims to enjoy full rights and
protection in Romania.

goods and services in Classes 16, 39 and 42 (Community trade
mark No 81 406).

Proprietor of the Community trade mark: The applicant.

Applicant for the declaration of invalidity: DSR touristik GmbH.

Decision of the Cancellation Division: Partial declaration of inva-
lidity of the trade mark concerned.

Decision of the Board of Appeal: Dismissal of the appeal.

Pleas in law: Incorrect application of Article 51(1)(a), of Article 7
(1)(c) and of Article 51(2) of Regulation (EC) No 40/94 (1).

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

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

Action brought on 4 June 2007 — Frosch Touristik v
OHIM — DSR touristik (FLUGBÖRSE)

(Case T-189/07)

(2007/C 183/66)

Language in which the application was lodged: German

Action brought on 31 May 2007 — Anheuser-Busch v
OHIM — Budějovický Budvar (BUDWEISER)

(Case T-191/07)

(2007/C 183/67)

Language in which the application was lodged: German

Parties

Applicant: Frosch Touristik GmbH (Munich, Germany)
sented by: H. Lauf, Rechtsanwalt)

(repre-

Parties

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

Other party to the proceedings before the Board of Appeal of OHIM:
DSR touristik GmbH

Form of order sought

— annul the decision of the Fourth Board of Appeal of the
Office for Harmonisation in the Internal Market (Trade Marks
and Designs) of 22 March 2007 — Case R 1084/2004-4 —
in its entirety and refer the case back to the Office for
Harmonisation in the Internal Market
(Trade Marks and
Designs) for a fresh decision;

— order the defendant to pay the costs.

Pleas in law and main arguments

Registered Community trade mark in respect of which a declaration of
for
invalidity has been sought: The word mark ‘FLUGBÖRSE’

Applicant: Anheuser-Busch, Inc. (St. Louis, United States) (repre-
sented by: V. von Bomhard, lawyer)

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

Other party to the proceedings before the Board of Appeal of OHIM:
Budějoviský Budvar, národní podnik

Form of order sought

— Annul the decision of the Second Board of Appeal of the
Office for Harmonisation in the Internal Market (Trade Marks
and Designs) of 20 March 2007 in Case R 299/2006-2;

— In the alternative, annul the decision of the Second Board of
Appeal of
the Office for Harmonisation in the Internal
Market (Trade Marks and Designs) of 20 March 2007 in
Case R 299/2006-2 in so far as it concerns ‘non-alcoholic
drinks’;

— Order the defendant and, in the event that it intervenes, the
other party to the proceedings before the Office for Harmo-
nisation in the Internal Market to pay the costs.