Case T-321/07: Action brought on 28 August 2007 — Lufthansa AirPlus Servicekarten v OHMI — Applus Servicios Tecnológicos (A+)
Date: 2007-11-10
Institutions: Court of First Instance
Subjects: EU trade mark, European Union Intellectual Property Office, action for annulment (EU), air transport, trade-mark law

C 269/50

EN

Official Journal of the European Union

10.11.2007

Form of order sought

— Declare null and void the Decision of the Committee on

Petitions of 20 June 2007 on Petition No 0095/2007;

— Order the defendant to pay the costs.

Pleas in law and main arguments

The applicant contests the Decision of the Committee on Peti-
tions of the European Parliament of 20 June 2007, by which
in accordance with
the petition submitted by the applicant
the European
Article 191(6) of
Parliament was put on the file without further action being
taken. The applicant's petition relates to the partial recovery of
the candidate's remuneration paid during his pre-service training
for the career of senior general administrator with the munici-
pality of Brunswick.

the Rules of Procedure of

In support of his application, the applicant submits that the
contested decision is not sufficiently well founded. In addition,
he points out that the requirements for submission of a petition
under Article 194 EC are met, in particular that it relates to a
matter which comes within the Community's fields of activity
and which affects him directly.

Action brought on 27 August 2007 — Commission v
B2Test

(Case T-317/07)

(2007/C 269/90)

Language of the case: French

Parties

Applicant: Commission of the European Communities (Brussels,
Belgium)
(represented by: L. Escobar Guerrero, agent, and E.
Bouttier, lawyer)

Defendant: B2Test (Gardanne, France)

Form of order sought

— order B2Test

to pay to the

sum of
EUR 50 110,72, corresponding to the principal sum owed
of EUR 43 437,94 and the sum of EUR 6 672,78 owed by
way of default interest, due as of 23 December 2004;

applicant

the

— order B2Test to pay interest amounting to EUR 8,03 per day
at the same rate with effect from 24 December 2004 until
the entire amount due has been paid in full;

— order B2Test to pay the costs.

Pleas in law and main arguments

the
By the present action based on an arbitration clause,
the defendant be ordered to repay
applicant
the advance paid by the Community,
together with default
interest, as a result of the non-performance of Contract No

requests that

for

BRST-CT-98-5452, concluded in the context of a specific
programme
research and technological development,
including demonstration, in the field of industrial and materials
technologies
the project
‘Research and development of a new safety flooring based on
recycled plastic and rubber materials for an environmental and
economic added value’.

and concerning

(1994-1998) (1)

Under the contract, the defendant was required regularly to
submit to the Commission the scientific and financial docu-
ments referred to in the contract. According to the applicant,
only part of the documents required under the contract were
forwarded by the defendant almost three years after the dates
laid down in the contract. The final report on the project was
never forwarded. The applicant therefore submits that the defen-
dant failed to fulfil its contractual obligations and is required to
repay to the Commission the advances which it initially paid to
the defendant.

(1) OJ 1994 L 222, p. 19.

Action brought on 28 August 2007 — Lufthansa AirPlus
Servicekarten v OHMI — Applus Servicios Tecnológicos
(A+)

(Case T-321/07)

(2007/C 269/91)

Language in which the application was lodged: English

Parties

Applicant: Lufthansa AirPlus Servicekarten GbmH (Neu Isenburg,
Germany)
(represented by: G. Würtenberger, T. Wittmann,
lawyers)

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

Other party to the proceedings before the Board of Appeal: Applus
Servicios Technologicos, S.L. (formerly Agbar Automotive, S.L.)
(Barcelona, Spain)

Form of order sought

— That the decision of the Second Board of Appeal dated
7 June 2007 in Case R 310/2006-2, pertaining to the oppo-
sition
registration
No 2 335 693 ‘Airplus International’ against Community
trademark application No 2 933 356 ‘A+’ be annulled;

on Community

trademark

based

— that the opposition against Community trademark applica-
tion No 2 933 356 ‘A+’ be granted and application for regis-
tration of Community trademark registration No 2 933 356
‘A+’ be rejected;

— that the defendant pays the costs of the proceedings.

10.11.2007

EN

Official Journal of the European Union

C 269/51

Pleas in law and main arguments

Other party to the proceedings before the Board of Appeal of the
Office: Chemicals International Establishment

Applicant for the Community trade mark: Applus Servicios Techno-
logicos, S.L. (formerly Agbar Automotive, S.L.)

Community trade mark concerned: The figurative trade mark ‘A+’
for goods and services in Classes 9, 35, 36, 37, 40, 41 and 42
— application No 2 933 356

Form of order sought

Proprietor of the mark or sign cited in the opposition proceedings:
Lufthansa AirPlus Servicekarten GbmH

Mark or sign cited: The Community word mark ‘Airplus Interna-
tional’ for goods and services in Classes 9, 35, 36 and 42

Decision of the Opposition Division: Rejected the opposition

Decision of the Board of Appeal: Dismissed the appeal

Pleas in law: Infringement of Articles 8(1) and 8(5) as well as
Articles 73, 74 and 79 of Council Regulation (EC) No 40/94.

The applicant claims that the Board failed to evaluate the criteria
of identity of goods and services as well as the similarity of the
marks and disregarded the reputation enjoyed by the earlier
mark. Moreover,
the Board has
the applicant submits that
breached its duty to state the reasons on which its decision was
based. Also, according to the applicant,
the Board did not
restrict itself to the examination of uncontested facts, evidence
and arguments put forward by the parties. Furthermore, the
applicant
rights of due process were
severely impaired by the Office's failure to inform the applicant
trademark's proprietor by
the
about
the Board
submitted that
is
another company. Finally,
exceeded its powers when taking into account the submissions
filed by the trademark proprietor, without justification, beyond
the time-limit set by the Office.

replacement of

contends

that

the

its

it

Action brought on 27 August 2007 — Kenitex Química v
OHIM

(Case T-322/07)

(2007/C 269/92)

Language in which the application was lodged: Portuguese

Parties

Applicant: Kenitex Química, S.A.
(represented by: M. Pardete Reis, lawyer)

(Manique, Estoril

(Portugal))

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

— annulment of the decision of the Fourth Board of Appeal of
the Office of 19 June 2007, notified by fax to the applicant
on 25 June 2007 in the proceedings for invalidity No 879
Trade Mark Register
C 001553742/1
No 1553742), to which corresponds case No R 330/2006-4
and, in consequence, declare valid Community trade mark
No 1553742 ‘KENITEX TINTAS A QUALIDADE DA COR’,
applied for on 13 March 2000 and registered on 22 May
2001;

(Community

— order the defendant to pay the costs.

Pleas in law and main arguments

On 22 May 2001 the figurative Community trade mark
‘KENITEX TINTAS A QUALIDADE DA COR’ was registered for
goods in Classes 1, 2 and 19 of
the Nice Classification
(chemicals used in industry, artificial resins, paints, varnishes,
lacquers, mordants, natural resins, metals for painters; building
materials (non-metallic), asphalt paving, cladding, road safety
devices, glass (building)).

Chemicals International Establishment sought cancellation of
the Community mark on the basis that there existed in previous
registers graphic national marks ‘Kenitex’ for goods in Classes 2
(decorating paints) in Portugal, ‘Kenitex’ for goods in Classes 2
and 19 (cladding of various colours for buildings) in France and
‘Kenitex’ for goods in Classes 1, 2, 17 and 19 (non-inflammable
and waterproof goods, paints and cladding)
in the Benelux
countries.

The Cancellation Division upheld the application for a declara-
tion of invalidity and the Board of Appeal dismissed the appeal
brought by the applicant against that decision, considering that
there was some likelihood of confusion, given the similarity of
the goods and signs.

The applicant alleges contravention of Article 8(1)(b) of Council
Regulation No 40/94 (1), taking the view that there is no likeli-
hood of confusion between the two signs and the applicant's
sign corresponds to its business name (that of the company)
and name of the establishment registered in Portugal with the
National Institute of Industrial Property.

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

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