Case T-301/07: Action brought on 5 August 2007 — Lumenis v OHIM (FACES)
Date: 2007-10-20
Institutions: Court of First Instance
Subjects: EU trade mark, European Union Intellectual Property Office, action for annulment (EU), medical device, trade-mark law

20.10.2007

EN

Official Journal of the European Union

C 247/35

Order of the Court of First Instance of 28 August 2007 —
Galileo Lebensmittel v Commission

Action brought on 5 August 2007 — Lumenis v OHIM
(FACES)

(Case T-46/06) (1)

(Action for annulment — Implementation of the Top Level
Domain ‘eu’ — Registration of the domain name ‘galileo.eu’
the
— Use restricted to the institutions and bodies of

Community — Locus standi — Inadmissibility)

(Case T-301/07)

(2007/C 247/58)

Language of the case: English

(2007/C 247/57)

Language of the case: German

Parties

Parties

Applicant: Lumenis Ltd (Yokneam,
Malynicz, Barrister, B. Gerber, Solicitor)

Israel)

(represented by: S.

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

Applicant: Galileo Lebensmittel GmbH & Co. KG (Trierweiler,
Germany) (represented by: K. Bott, lawyer)

Form of order sought

Defendant: Commission of the European Communities (repre-
sented initially by: E. Montaguti and T. Jürgensen, then by: G.
Braun and E. Montaguti, acting as Agents)

— The decision of the Second Board of Appeal dated 1 June

2007 in Case R 1532/2006-2 shall be annulled;

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

applicant.

Re:

Pleas in law and main arguments

Action for annulment of the Commission's decision to register
‘galileo.eu’ as an eu. Top Level Domain reserved for use by the
Community institutions and bodies, pursuant to Article 9 of
Commission Regulation (EC) No 874/2004 of 28 April 2004
laying down public policy rules concerning the implementation
and functions of the ‘.eu’ Top Level Domain and the principles
governing registration (OJ 2004 L 162, p. 40)

Operative part of the order

1. The action is dismissed as inadmissible.

2. Galileo Lebensmittel GmbH & Co. KG is ordered to bear its own

costs and pay those incurred by the Commission.

(1) OJ C 86, 8.4.2006.

Community trade mark concerned: The international word mark
‘FACES’
for goods in class 10 — International registration
No W0874799

Decision of the examiner: Refused registration in whole

Decision of the Board of Appeal: Dismissed the appeal

Pleas in law: In support of its claims, the applicant advances the
following grounds:

the applicant claims that

First,
distinctiveness in relation to all the goods applied for;

the Board failed to analyse

Second, according to the applicant, the Board's finding that
promotion and marketing in the trade commonly employs facial
photographs was unsupported and, in any event, relevant, if at
all, to Article 7(1)(b) or Article 7(1)(c);

Third, the applicant contends that the Board failed to analyse
the aptness of the term FACES as a descriptive indication in rela-
tion to the goods concerned;

C 247/36

EN

Official Journal of the European Union

20.10.2007

Fourth, the applicant submits that the Board committed an
error of
the mark be
striking, imaginative or creative in order to avoid the objections
under Article 7(1)(b) CTMR.

law by imposing a requirement

that

Action brought on 17 August 2007 — gardeur v OHIM —
Blue Rose (g)

(Case T-310/07)

(2007/C 247/59)

Language in which the application was lodged: English

Parties

Applicant: gardeur AG (Mönchengladbach, Germany)
sented by: A. Beschorner, B. Glaser, C. Thomas, lawyers)

(repre-

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

Other party to the proceedings before the Board of Appeal: Blue Rose
Inc. (Nashville Tennessee, United States)

Form of order sought

— annul

the decision of

the Second Board of Appeal
No R 878/2006 2 of 15 June 2007, regarding Community
trademark No 1153741 ‘g’
in so far as it dismisses the
appeal in relation to goods in Class 25;

— order

the defendant

to pay the costs incurred in the
proceedings before the court and to order the intervener to
pay the costs of the administrative proceedings before the
Board of Appeal.

containing the letter ‘g’ for goods and services in Classes 9, 25,
and 41

Proprietor of the Community trade mark: Blue Rose Inc.

Party requesting the declaration of invalidity of the Community trade
mark: Gardeur ag

Trade mark right of the party requesting the declaration of invalidity:
The Community figurative mark picturing a black square
containing the letter ‘g’ for goods and services in Class 3, 18
and 25 — application No 1153741

Decision of the Cancellation Division: Rejected the request for a
declaration of invalidity

Decision of the Board of Appeal: Dismissed the appeal

Pleas in law: Infringement of Article 4 and Article 8(1)(b) of the
CTMR.

Action brought on 28 August 2007 — National Association
of Licensed Opencast Operators v Commission

(Case T-318/07)

(2007/C 247/60)

Language of the case: English

Parties

Applicant: The National Association of Licensed Opencast
Operators (Chester-le-Street, United Kingdom) (represented by:
H. Bracegirdle, Solicitor, M. Hoskins and C. West, Barristers)

Defendant: Commission of the European Communities

Pleas in law and main arguments

Form of order sought

Registered Community trade mark subject of
the application for a
declaration of invalidity: The figurative mark consisting of a circle

— The Commission pay the applicant's costs.

— The Commission Decision of 18 June 2007 be annulled.