Case T-427/07: Action brought on 16 November 2007 — Mirto Corporación Empresarial v OHIM — Maglificio Barbara (Mirtillino)
Date: 2007-11-16
Institutions: Court of First Instance
Subjects: EU trade mark, European Union Intellectual Property Office, action for annulment (EU), clothing industry, cosmetic product, leather industry, trade-mark law

26.1.2008

EN

Official Journal of the European Union

C 22/47

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

Pleas in law and main arguments

Form of order sought

— annul the decision of the Fourth Board of Appeal of the
(Trade
and Designs) of 3 September 2007 in Case

Office for Harmonisation in the Internal Market
Marks
R 1274/2006-4 in its entirety;

— order the defendant to pay the costs.

Pleas in law and main arguments

Community trade mark concerned: Word mark ‘300’ for goods and
services in Classes 16, 28 and 41 (Application No 3 875 416).

Decision of the Examiner: Refusal of registration.

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

Pleas in law: Incorrect application of Articles 7(1)(b) and (c) of
Regulation No 40/94 on the Community trade mark (1) since,
in the applicant's submission, the sign ‘300’ is neither descrip-
tive nor devoid of distinctive character in relation to the goods
and services indicated.

Community trade mark concerned: Word mark ‘100’ for goods and
services in Classes 16, 28 and 41 (Application No 3 875 408).

(1) Council Regulation (EC) No 40/94 of 20 December 1993 (OJ 1994

L 11, p. 1).

Decision of the Examiner: Refusal of registration.

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

Pleas in law: Incorrect application of Articles 7(1)(b) and (c) of
Regulation No 40/94 on the Community trade mark (1) since,
in the applicant's submission, the sign ‘100’ is neither descrip-
tive nor devoid of distinctive character in relation to the goods
and services indicated.

(1) Council Regulation (EC) No 40/94 of 20 December 1993 (OJ 1994

L 11, p. 1).

Action brought on 16 November 2007 — Agencja
Wydawnicza Technopol v OHIM (300)

(Case T-426/07)

(2008/C 22/88)

Language of the case: Polish

Parties

Action brought on 16 November 2007 — Mirto
Corporación Empresarial v OHIM — Maglificio Barbara
(Mirtillino)

(Case T-427/07)

(2008/C 22/89)

Language in which the application was lodged: Spanish

Parties

Applicant: Mirto Corporación Empresarial, S.L. (Madrid, Spain)
(represented by: E. Armijo Chávarri, 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:
Maglificio Barbara Srl

Form of order sought

— Annul the Decision of the Second Board of Appeal of OHIM
of 28 August 2007 in Case R 875/2006-2 and order
expressly that OHIM pay the costs.

Applicant: Agencja Wydawnicza
(Częstochowa, Poland)
adviser)

z
(represented by D. Rzążewska,

Technopol

sp.

o.o.
legal

Pleas in law and main arguments

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 the
(Trade
and Designs) of 3 September 2007 in Case

Office for Harmonisation in the Internal Market
Marks
R 1275/2006-4 in its entirety;

— order the defendant to pay the costs.

Applicant for a Community trade mark: Maglificio Barbara Srl

Community trade mark concerned: Figurative mark ‘Mirtillino’ for
goods in Classes 3, 18 and 25 (application No 3 252 467)

Proprietor of the mark or sign cited in the opposition proceedings:
Creaciones Mirto, S.A.; the applicant following transfer of the
marks at issue in the opposition proceedings.

Mark or sign cited in opposition: Word mark ‘MIRTO’ (Community
trade mark No 1 653 351) for goods in Classes 3, 18 and 25
and a number of other national word and figurative marks
‘MIRTO’.

C 22/48

EN

Official Journal of the European Union

26.1.2008

Decision of the Opposition Division: Partly upheld the opposition.

that effective working time could have amounted to fewer
than the 7 092,88 hours claimed by CEVA.

Decision of the Board of Appeal: Annulment of the decision under
appeal and dismissal of the opposition.

Pleas in law: Infringement of Article 8(1)(b) of Regulation (EC)
No 40/94 (1) since there is a likelihood of confusion between
the conflicting marks.

(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 22 November 2007 — Centre d'Étude
et de Valorisation des Algues v Commission

(Case T-428/07)

(2008/C 22/90)

Language of the case: French

Parties

Applicant: Centre d'Étude et Valorisation des Algues SA (CEVA)
(Pleubian, France) (represented by: J.-M. Peyrical, lawyer)

Defendant: Commission of the European Communities

Form of order sought

— as the principal claim,

find procedural

irregularity and
breach of the principle that both parties should be heard and
therefore annul Commission debit note No 3240908670 of
20 September 2007 and order the Commission to repay the
debit note at issue to CEVA;

Pleas in law and main arguments

By this action, the applicant seeks annulment of the debit note
by which the Commission ordered the repayment in full of the
advances paid to the applicant in relation to the SEAHEALTH
contract No QLK1-CT-2002-02433, concerning the project
‘Food, Nutrition and Health’ which was part of the ‘Quality of
Life and Management of Living Resources’ key action (1).

In support of its application, it relies on a plea in law alleging
breach of the rights of the defence inasmuch as the Commis-
sion,
in breach of the principle that both parties should be
heard, based its order for repayment on the timesheets and
conclusions of OLAF of which the applicant had no knowledge.

In the alternative, the applicant challenges the Commission's
application of Article 3.5 of Annex II and its finding that the
facts in this case were sufficiently serious for it to rely on the
concept of serious financial
irregularities justifying full repay-
ment of the advances.

(1) Fifth framework programme of

the European Community for
technological development and demonstration activities

research,
(1998-2002).

Action brought on 23 November 2007 — Bodegas
Montebello v OHIM — Montebello (MONTEBELLO RHUM
AGRICOLE)

(Case T-430/07)

(2008/C 22/91)

Language in which the application was lodged: Spanish

— in the alternative, find that the errors found in the audit
report are not sufficiently serious for Article 3.5 of Annex II
to the contract to be applied; annul Commission debit note
No 3240908670 of 20 September 2007 in so far as it
claims full repayment of the sums paid to CEVA under the
SEAHEALTH contract; and order the Commission to repay
the debit note at issue in favour of CEVA;

— in the further alternative, appoint an expert of the Court of
First Instance's own choice with the task of: taking up again
CEVA's method of calculating the time spent on projects;
comparing that method with the SEAHEALTH contract and
with the actual costs submitted in the cost statements;
stating, as a percentage, the difference between the total
errors in the registration of work time as presented to the
Commission and the total registration of that work time
according to the calculation method applicable from that
time on at CEVA; carrying out an assessment of the direct
working time needed to carry out CEVA's tasks in the
context of the SEAHEALTH contract; and stating whether

Parties

Applicant: Bodegas Montebello, S.A.
(repre-
sented by: T. Andrade Boué, M.I. Lehmann Novo, and A.
Hernández Lehmann, lawyers)

(Montilla, Spain)

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

Other party to the proceedings before the Board of Appeal of OHIM:
Montebello (limited company) (Guadalupe, France)

Form of order sought

— annulment of OHIM's decision of 7 September 2007 in Case

R 223/2007-2;