Case T-416/07: Action brought on 21 November 2007 — RedEnvelope v OHIM — Red Letter Days (REDENVELOPE)
Date: 2007-11-21
Institutions: Court of First Instance
Subjects: EU trade mark, European Union Intellectual Property Office, action for annulment (EU), distance selling, trade-mark law

C 8/26

EN

Official Journal of the European Union

12.1.2008

Action brought on 21 November 2007 — RedEnvelope v
OHIM — Red Letter Days (REDENVELOPE)

(Case T-416/07)

(2008/C 8/46)

Language of the case: English

Pleas in law: Violation of Article 74(2) of Council Regulation
No 40/94, as the Board of Appeal admitted new evidence,
which will allow the Opposition Division to make a decision
in the
based on evidence, which was not available earlier
proceedings and to which the applicant has not had an opportu-
nity to respond before the Opposition Division.

Parties

Action brought on 16 November 2007 — Lodato Gennaro
& C. v Commission

Applicant: RedEnvelope Inc. (San Francisco, United States) (repre-
sented by: A. Poulter, Solicitor)

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

(Case T-417/07)

(2008/C 8/47)

Language of the case: Italian

Other party to the proceedings before the Board of Appeal: Red Letter
Days Ltd (London, United Kingdom)

Parties

Form of order sought

— Annul

the decision of

the First Board of Appeal dated
14 September 2007, No R 765/2005-1,
in so far as the
decision provided for the admission of new evidence in
support of the grounds of opposition;

— order that the defendant pays the applicant's costs of this

appeal.

Applicant: Lodato Gennaro & C. Spa (Castel San Giorgio, Italy)
(represented by: M.A. Calabrese, lawyer)

Defendant: Commission of the European Communities

Form of order sought

— Order the annulment of Commission Decision SG/E/3/MIB/

frw D(2007) 8690 of 8 October 2007;

— Order the Commission to pay the costs.

Pleas in law and main arguments

Pleas in law and main arguments

Applicant for the Community trade mark: The applicant

Community trade mark concerned: The word mark ‘REDENVELOPE’
for services in classes 35 and 42 — application No 1 601 392

Proprietor of the mark or sign cited in the opposition proceedings: Red
Letter Days Ltd

Mark or sign cited: The registered and non-registered national
word and figurative marks ‘RED LETTER’, ‘RED LETTER DAYS’
and ‘RED LETTER DAYS PLC’ for goods and services in classes
9, 14, 16, 18, 21, 22, 25, 26, 33, 36, 39, 41, 42, 43 and 44

Decision of the Opposition Division: Opposition partially upheld

The action is brought against
the Commission decision of
8 October 2007, which refused access to certain documents
sent
in the
to the Commission by the Italian Government
context of a preliminary examination of State aid, Cases No
701/98 and 824/01, with reference to the opposition to disclo-
sure expressed by the Italian Government following its consulta-
tion by Commission staff.

In support of its claims, the applicant alleges infringement and
misapplication of Article 4(5) of Regulation (EC) No 1049/2001
of the European Parliament and of the Council of 30 May 2001
regarding public access to European Parliament, Council and
Commission documents (1).
It claims in this regard that the
Commission erred in its interpretation of that provision, by
granting Member States the power to prohibit the disclosure of
documents originating from the Member State and held by
Community institutions.

Decision of the Board of Appeal: Annulment of the Opposition
Division's decision and remittal of the case to the Opposition
Division for
regards
Article 8(4) of Council Regulation No 40/94

further consideration in so far as it

(1) OJ L 145, 31.5.2001, p. 43.