Case T-16/08: Action brought on 11 January 2008 — Perfetti Van Melle v OHIM — Cloetta Fazer (CENTER SHOCK)
Date: 2008-01-11
Institutions: Court of First Instance
Subjects: EU trade mark, European Union Intellectual Property Office, Italy, action for annulment (EU), food industry, trade-mark law

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)

C 64/60

EN

Official Journal of the European Union

8.3.2008

Other party to the proceedings before the Board of Appeal: Cloetta
Fazer AB (Ljungsbro, Sweden)

Appeal brought on 14 January 2008 by Marta Andreasen
against the judgment of the Civil Service Tribunal delivered
on 8 November 2007 in Case F-40/05, Andreasen v
Commission

Form of order sought

— Totally alter the decision of the OHIM Fourth Board of
Appeal, Case R 149/2006-4, rendered on 7 November 2007
and notified on 9 November 2007;

(Case T-17/08 P)

(2008/C 64/97)

Language of the case: French

— annul

the decision of

the OHIM Cancellation Division,
rendered on 24 November 2005, ruling on cancellation
action No 941 C 973 065;

— confirm the

validity

of

Perfetti's CTM registration

No 973 065 CENTER SHOCK;

— order

the defendants to bear

the present
proceeding, as well as those of the OHIM invalidity and
appeal proceedings.

the costs of

Parties

Appellant: Marta Andreasen (Barcelona, Spain) (represented by B.
Marthoz, lawyer)

Other party to the proceedings: Commission of
Communities

the European

Pleas in law and main arguments

Form of order sought by the appellant

Registered Community trade mark subject of
declaration of
goods in class 30 — Community trade mark No 973 065

the application for a
invalidity: The word mark ‘CENTER SHOCK’ for

Proprietor of the Community trade mark: The applicant

Party requesting the declaration of invalidity of the Community trade
mark: Cloetta Fazer AB

Trade mark right of the party requesting the declaration of invalidity:
The national word marks ‘CENTER’ and ‘CLOETTA CENTER’ for
goods in, inter alia, class 30

Decision of the Cancellation Division: Declaration of invalidity of
the Community trade mark

Decision of the Board of Appeal: Dismissal of the appeal

Pleas in law: Infringement of Article 52(1)(a) of Council Regu-
lation No 40/94, as the conflicting trade marks are globally
impression, although
different in sound, meaning and overall
they have a common element. Furthermore, Cloetta and Perfetti
operate, according to the applicant, in different markets, since
their products address different needs and different consumers.

— set aside the judgment of

the Civil Service Tribunal of
8 November 2007 in Case F-40/05, rule on the dispute and
grant the form of order sought by the appellant at first
instance, including the claim for damages;

— order the defendant in the appeal to pay the costs;

— order the European Commission to pay all the costs and

expenses;

— in the alternative, set aside the judgment of the Civil Service
Tribunal of 8 November 2007 in Case F-40/05, refer the
case back to the Civil Service Tribunal and reserve the costs.

Pleas in law and main arguments

In her appeal, the appellant claims that the judgment of the
Civil Service Tribunal dismissing the action, first, for the annul-
the decision of 30 October 2004 by which the
ment of
Commission removed her
from her post as a disciplinary
measure without any reduction of her pension rights and,
second, the claim for damages should be set aside.

In support of her appeal, the appellant puts forward five pleas.

First of all, she claims that the Civil Service Tribunal infringed
Article 10 of Annex IX to the Staff Regulations, in that it did
not carry out a review of the legality and of the proportionality
of the decision contested at first instance in relation to the
application of that provision in the light of the circumstances of
the present case and the appellant's particular situation owing to
the nature of the tasks which she performed.