Case T-11/08: Action brought on 7 January 2008 — Kwang Yang Motor v OHIM — Honda Giken Kogyo (Representation of an internal-combustion engine)
Date: 2008-01-07
Institutions: Court of First Instance
Subjects: Asia, EU trade mark, European Union Intellectual Property Office, action for annulment (EU), motor vehicle industry, trade-mark law

C 64/58

EN

Official Journal of the European Union

8.3.2008

Pleas in law:

— Infringement

of Article

(EC)
No 40/94 (1) due to an incorrect examination of the facts by
the Office of its own motion;

of Regulation

74(1)

combustion engine’ — Community Design No 000 163 290 —
0001

Proprietor of the Community design: The applicant

— Infringement of Article 73 of Regulation No 40/94, namely

the right to a fair hearing;

Party requesting the declaration of invalidity of the Community design:
Honda Giken Kogyo Kabushiki Kaisha Co. Ltd

— Infringement of Article 7(1)(b) of Regulation No 40/94 in
finding the mark to be devoid of any distinctive character.

Design of the party requesting the declaration of invalidity: Registered
US design in respect for an ‘internal-combustion engine’ —
Patent No D 367 070

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

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

Decision of
invalidity in its entirety

the Invalidity Division: Rejected the application for

Decision of the Board of Appeal: Annulled the decision of the
Invalidity Division and declared the design invalid

Pleas in law: Infringement of Articles 4 and 6 of Council Regu-
lation (EC) No 6/2002 on Community Designs.

Action brought on 7 January 2008 — Kwang Yang Motor
v OHIM — Honda Giken Kogyo (Representation of an
internal-combustion engine)

(Case T-10/08)

(2008/C 64/93)

Language in which the application was lodged: English

Action brought on 7 January 2008 — Kwang Yang Motor
v OHIM — Honda Giken Kogyo (Representation of an
internal-combustion engine)

Parties

(Case T-11/08)

(2008/C 64/94)

Applicant: Kwang Yang Motor Co. Ltd (Kaohsiung City, Taiwan)
(represented by: P. Rath and W. Festl-Wietek, lawyers)

Language in which the application was lodged: English

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

Parties

Other party to the proceedings before the Board of Appeal: Honda
Giken Kogyo Kabushiki Kaisha Co. Ltd (Tokyo, Japan)

Applicant: Kwang Yang Motor Co. Ltd (Kaohsiung City, Taiwan)
(represented by: P. Rath and W. Festl-Wietek, lawyers)

Form of order sought

— Annulment of the decision of the Third Board of Appeal of
the OHIM of 8 October 2007 served to the representatives
of
in Case R
1337/2006-3;

applicant on 30 October 2007,

the

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

Other party to the proceedings before the Board of Appeal: Honda
Giken Kogyo Kabushiki Kaisha Co. Ltd (Tokyo, Japan)

— order the OHIM to pay the costs of the proceedings before

the Court and Board of Appeal.

Form of order sought

Pleas in law and main arguments

— Annulment of the decision of the Third Board of Appeal of
the OHIM of 8 October 2007 served to the representatives
of
in Case
applicant on 30 October 2007,
R 1380/2006-3;

the

Registered Community design subject of the application for a declara-
tion of invalidity: Registered Community design for an ‘Internal-

— order the OHIM to pay the costs of the proceedings before

the Court and Board of Appeal.

8.3.2008

EN

Official Journal of the European Union

C 64/59

Pleas in law and main arguments

Other party to the proceedings: European Medicines Agency
(EMEA)

Registered Community design subject of the application for a declara-
tion of invalidity: Registered Community design for an ‘internal-
combustion engine’ — Community Design No 000 163 290 —
0002

Proprietor of the Community design: The applicant

Party requesting the declaration of invalidity of the Community design:
Honda Giken Kogyo Kabushiki Kaisha Co. Ltd

Design of the party requesting the declaration of invalidity: Registered
US design in respect for an ‘internal-combustion engine’ —
Patent No D 282 071

Form of order sought by the appellant

— set aside the order of

the Civil Service Tribunal of
19 October 2007 in M v European Medicines Agency in
Case F-23/07;

— annul the decision of the EMEA of 25 October 2006 in so
far as it dismisses the request of 8 August to consult the
Invalidity Committee;

— annul the decision of the EMEA dismissing the request for

compensation;

Decision of
invalidity in its entirety

the Invalidity Division: Rejected the application for

— order the defendant to pay the costs at first instance and on

appeal.

Decision of the Board of Appeal: Annulled the decision of the
Invalidity Division and declared the design invalid

Pleas in law and main arguments

Pleas in law: Infringement of Articles 4 and 6 of Council Regu-
lation (EC) No 6/2002 on Community Designs

The applicant claims that the freedom of designers of combus-
tion engines is narrowed to designs which fulfil the requirement
of functionality. In addition, the industry's state of art being
nearly exhausted, it is even more difficult for designers in this
field to provide an alternative offering a totally different overall
impression without reducing the design's functionality. Hence,
according to the applicant, even the slightest details have to be
taken into consideration when assessing the individual character
of the design.

The applicant further submits that it nevertheless succeeded to
maintain functionality as well as technical features of the chal-
lenged design, while giving its essential components an indivi-
dual character.

In his appeal, the appellant asks the Court to set aside the order
of the Civil Service Tribunal dismissing, on the ground that it is
inadmissible,
the decision of
25 October 2006 by which the European Medicines Agency
dismissed his request to set up and Invalidity Committee.

the action for annulment of

In support of his appeal, the appellant puts forward a single
plea alleging infringement of Community law. He claims that
the Civil Service Tribunal has committed an error of interpreta-
tion with respect to the scope of his action at first instance and,
therefore, it gave a ruling ultra petita. He also claims that the
Civil Service Tribunal
infringed Article 33(1) and (2) of the
Conditions of Employment of Other Servants of the Commu-
nities.

Appeal brought on 4 January 2008 by M against the order
of the Civil Service Tribunal delivered on 19 October 2007
in Case F-23/07, M v EMEA

(Case T-12/08 P)

(2008/C 64/95)

Language of the case: French

Action brought on 11 January 2008 — Perfetti Van Melle v
OHIM — Cloetta Fazer (CENTER SHOCK)

(Case T-16/08)

(2008/C 64/96)

Language in which the application was lodged: English

Parties

Parties

Applicant: Perfetti Van Melle SpA (Lainate, Italy) (represented by:
P. Perani and P. Pozzi, lawyers)

Appellant: M (Broxbourne, United Kingdom) (represented by S.
Orlandi, A. Coolen, J.-N Louis and E. Marchal, lawyers)

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