Case T-344/07: Action brought on 10 September 2007 — O2 (Germany) v OHIM (Homezone)
Date: 2007-11-10
Institutions: Court of First Instance
Subjects: EU trade mark, European Union Intellectual Property Office, Germany, action for annulment (EU), telecommunications, trade-mark law

C 269/60

EN

Official Journal of the European Union

10.11.2007

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

Action brought on 13 September 2007 — La Banque
Postale v Commission

Pleas in law: Infringement of Article 7(1)(b) and (c) of Regulation
(EC) No 40/94 (1), since the trade mark applied for does not
lack the necessary distinctive character and is not descriptive.

(1) Council Regulation (EC) No 40/1994 of 20 December 1993 on the

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

(Case T-345/07)

(2007/C 269/109)

Language of the case: French

Parties

Action brought on 10 September 2007 — O2 (Germany) v
OHIM (Homezone)

Applicant: La Banque Postale (represented by: S. Hautbourg and
J.-E. Skovron, lawyers)

(Case T-344/07)

(2007/C 269/108)

Defendant: Commission of the European Communities

Language of the case: German

Form of order sought

Parties

Applicant: O2 (Germany) GmbH & Co. OHG (Munich, Germany)
(represented by A. Fottner and M. Müller, lawyers)

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

Form of order sought

— Annul the Decision of the Fourth Board of Appeal of OHIM
of 5 July 2007 in Case R 1583/2006-4 in so far as it rejects
the application;

— Order OHIM to pay the costs of the present proceedings

and those of the proceedings before OHIM.

Pleas in law and main arguments

Community trade mark concerned: The word mark ‘Homezone’ for
goods and services in Classes 9, 38 and 42 (application
No 4 677 506).

Decision of the Examiner: In part, rejection of the application.

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

Pleas in law: Breach of Article 7(1)(b) and (c) and of Article 7(3)
of Regulation (EC) No 40/94 (1).

(1) Council Regulation (EC) No 40/1994 of 20 December 1993 on the

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

— Annul in its entirety the contested decision on the basis of

the fourth paragraph of Article 230 EC;

— Order the Commission to pay the entire costs.

Pleas in law and main arguments

By the present action, the applicant requests the annulment of
Commission Decision C(2007) 2110 final of 10 May 2007
declaring incompatible with Article 86(1) EC,
in conjunction
with Article 43 EC and Article 49 EC, the provisions of the
French Code Monétaire et Financier (Monetary and Financial
Code) which reserve for three credit institutions — the appli-
cant, the Caisses d'Epargne et de Prévoyance and the Crédit Mutuel
— special rights for the distribution of the savings account
books known as ‘livret A’ and ‘livret bleu’.

In support of its action, the applicant relies on four pleas in law.

First, the applicant submits that the Commission infringed its
right to a fair hearing during the procedure which led to the
contested decision in that
the applicant was not given the
opportunity to comment on two reports provided to the
Commission by the complainants and which, according to the
applicant,
the
Commission's case.

transpired to form a fundamental part of

and on the

freedom to provide

Second, it claims that the Commission made numerous errors
of law and of appraisal in holding that the distribution arrange-
ments for the livret A constituted a restriction on the freedom of
establishment
services.
According to the applicant, the Commission erred in law by
giving a very broad interpretation to the notion of ‘restrictions’
in the sense of Articles 43 EC and 49 EC and to the circum-
stances in which those two principles may be relied upon. The
applicant also submits that the Commission concluded, wrongly,
that the special right makes establishment on the French market
for bank savings more difficult and more costly.