Case T-224/07: Action brought on 22 June 2007 — Imperial Chemical Industries v OHIM (LIGHT & SPACE)
Date: 2007-08-25
Institutions: Court of First Instance
Subjects: EU trade mark, European Union Intellectual Property Office, action for annulment (EU), painting, trade-mark law

C 199/42

EN

Official Journal of the European Union

25.8.2007

In support of his appeal, the applicant raises three pleas in law.

Form of order sought by the appellant

the applicant. He argues that

The first alleges infringement of Article 7(1) and (3) of Annex I
to the Statute of the Court of Justice, infringement of Article 20
irregularity adversely affecting
of that Statute, and procedural
the interests of
recourse to
Article 111 of the Rules of Procedure of the Court of First
Instance, applicable mutatis mutandis to the procedure before the
Civil Service Tribunal, on the basis of which the contested order
was made, could not take place after two exchanges of memo-
randa and an exchange of notes of observations, that is to say
where the ordinary procedure applied. In those circumstances,
the applicant argues, the Court could not rule on inadmissibility
before the oral procedure.

The second plea, put forward in the alternative, alleges infringe-
ment of Article 111 of the Rules of Procedure of the Court of
First Instance and irregularity in the procedure following from
it. In the applicant's submission, the contested order could not
have been issued on the basis of
that provision without
the oral
following the procedure and in particular without
phase, given that the advocate general had not been heard and
the inadmissibility claimed was not obvious.

The third plea, raised further in the alternative, alleges infringe-
ment of the principle of the right to a fair hearing, in that the
Civil Service Tribunal impliedly held that one of the annexes to
the rejoinder constituted proof that the procedure in question
was inadmissible, before the applicant had even had a chance to
give explanations concerning that document.

— set aside the order of the Civil Service Tribunal of 16 April
2007 in Case F-82/05, notified to the applicant on 17 April
2007;

— grant the forms of order sought by the appellant at first
instance and, consequently, declare the application in Case
F-82/05 to be admissible and well-founded;

— in the alternative, refer the case back 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 to have set aside the order of
the Civil Service Tribunal, which rejected in part as manifestly
inadmissible and in part as manifestly unfounded the action for
annulment of the list of officials promoted under the 2004
promotion procedure, in so far as that list does not include his
name.

In support of his appeal, the appellant puts forward a single
plea alleging an error of interpretation and of assessment of the
facts, which led to a procedural error and an error of law by the
Civil Service Tribunal in so far as it did not grant the applica-
tion, as set out in the reply at first instance, for a member of
the service in which the appellant was employed to be heard.

Appeal brought on 27 June 2007 by Michel Thierry against
the Civil Service Tribunal delivered on
the order of

16 April 2007 in Case F-82/05, Thierry v Commission

(Case T-223/07 P)

(2007/C 199/79)

Language of the case: French

Action brought on 22 June 2007 — Imperial Chemical
Industries v OHIM (LIGHT & SPACE)

(Case T-224/07)

(2007/C 199/80)

Language of the case: English

Parties

Applicant:
Kingdom)
V. Chandler, Solicitor)

Imperial Chemical
by:

(represented

Industries plc (London, United
and
S. Malynicz,

Barrister,

Parties

Appellant: Michel Thierry (Howald, Grand Duchy of Luxem-
bourg) (represented by: F. Frabetti, lawyer)

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

Form of order sought

— The decision of the First Board of Appeal dated 30 March

2007 in Case R 1631/2006-1 shall be annulled.

Other party to the proceedings: Commission of
Communities

the European

— The Office shall bear its own costs and pay those of the

applicant.

25.8.2007

EN

Official Journal of the European Union

C 199/43

Pleas in law and main arguments

Community trade mark concerned: The word mark ‘LIGHT &
SPACE’ for goods in class 2 — application No 5 147 756

Decision of the examiner: Refusal of the application

Decision of the Board of Appeal: Dismissal of the appeal

Pleas in law: Infringement of Article 7(1)(b) of Council Regu-
lation No 40/94 as the Board of Appeal regarded the trade
mark in question as if it were an advertising slogan, indication
to purchase without considering
of quality or
whether the trade mark could also be an indication of origin.

incitement

Furthermore, the Board of Appeal erred in its examination of
the trade mark as a whole and in its examination of its compo-
nent parts and committed an error of law by requiring that the
trade mark combines words that are unusual or out of the
ordinary in relation to the goods in question in order to acquire
distinctive character.

Finally the Board of Appeal did not assess distinctiveness in rela-
tion to the specific goods applied for.

Proprietor of the mark or sign cited in the opposition proceedings:
Vallon GmbH.

Mark or sign cited in opposition: Community figurative mark
No 51.037 (the letter V against a white background), for goods
in class 9 (Apparatus for checking and supervising).

Decision of the Opposition Division: Opposition upheld and appli-
cation for a Community mark for goods in class 9 rejected.

Decision of the Board of Appeal: Appeal dismissed.

Pleas in law: Incorrect application of Article 8(1)(b) of Regulation
(EC) No 40/94 on the Community trade mark.

Action brought on 2 July 2007 — Laboratorios Del
Dr. Esteve v OHIM — Ester C (ESTER-E)

(Case T-230/07)

(2007/C 199/82)

Language in which the application was lodged: English

Action brought on 29 January 2007 — Vitro Corporativo v
OHIM — VALLON (V)

Parties

(Case T-229/07)

(2007/C 199/81)

Language in which the application was lodged: Spanish

Parties

Applicant: Laboratorios Del Dr. Esteve, SA (Barcelona, Spain)
(represented by: K. Manhaeve, lawyer)

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

Other party to the proceedings before the Board of Appeal: Ester C
Company (Prescott, United States)

Applicant: Vitro Corporativo, S.A. de C.V.
J. Botella Reyna, lawyer)

(represented by:

Form of order sought

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

— Annul

the decision of
R 737/2006-2 of 17 April 2007;

the Second Board of Appeal

Other party to the proceedings before the Board of Appeal of OHIM:
Vallon GmbH.

— order

the defendant and — if applicable — Ester C

Company to pay all the costs (jointly and severally).

Form of order sought

— order that the subject matter of the action be registered as a
Community trade mark to distinguish goods in class 9.

Pleas in law and main arguments

Pleas in law and main arguments

Applicant for the Community trade mark: The Ester C Company

Community trade mark concerned: The Community word mark
‘ESTER-E’ for goods and services in Class 3 and 5 — application
No 3163946

Applicant for a Community trade mark: Vitro Corporativo, S.A. de
C.V.

Proprietor of the mark or sign cited in the opposition proceedings:
Laboratorios Del Dr. Esteve SA

Community trade mark concerned: Figurative mark consisting of a
letter ‘V’ (application No 2.669.513) for goods and services in
classes 1, 7, 8, 9, 11, 12, 16, 17, 19, 20, 21, 22, 27, 30, 35,
39, 40, 41, 42 and 43.

Mark or sign cited: The Community figurative mark ‘ESTEVE’ for
goods in Class 1, 5 and 42 and the national figurative mark
‘ESTEVE’ and ‘ESTEVE-LABORATORIO DEL DR. ESTEVE S.A.’
for goods in Class 5