Case T-31/08: Action brought on 23 January 2008 — Quantum v OHIM — Quantum Corporation (Quantum CORPORATION)
Date: 2008-01-23
Institutions: Court of First Instance
Subjects: EU trade mark, European Union Intellectual Property Office, action for annulment (EU), information technology industry, trade-mark law

12.4.2008

EN

Official Journal of the European Union

C 92/31

Form of order sought

Form of order sought

— Annul the decision of the First Board of Appeal OHIM dated
19 November 2007 (Case R 9/2007-1) and declare the
request
invalidation brought by the appellant well
founded;

for

— annul all cost orders made against the appellant by the
Office for Harmonisation in the Internal Market and order
the latter to bear the costs of the appellant.

— Annul the decision of the Second Board of Appeal of the
(Trade

Office for Harmonisation in the Internal Market
Marks and Designs) of 23 October 2007;

— order that OHIM bears its own and pays the applicant's

costs.

Pleas in law and main arguments

Pleas in law and main arguments

Registered Community trade mark subject of
the application for a
declaration of invalidity: The word mark ‘FAMOXIN’ for goods and
services in class 5 — Community trade mark No 2 491 298

the application for a
Registered Community trade mark subject of
declaration of invalidity: A three-dimensional mark representing a
chocolate bar for goods in classes 5, 29 and 30 — Community
trade mark No 818 864

Proprietor of the Community trade mark: Serono Genetics Institute
SA

Proprietor of the Community trade mark: The applicant

Party requesting the declaration of invalidity of the Community trade
mark: The applicant

Trade mark right of the party requesting the declaration of invalidity:
The national word marks ‘LANOXIN’ for goods in class 5

Decision of the Cancellation Division: Rejection of the request for a
declaration of invalidity

Decision of the Board of Appeal: Dismissal of the appeal

Pleas in law: Infringement of Articles 8(1)(b), 52 and 56(2) and
(3) of Council Regulation No 40/94, as the Board of Appeal
found the earlier trade marks to be used for ‘pharmaceutical
preparations for cardiovascular illnesses’ and not ‘pharmaceutical
preparations’ and as it assessed the relevant market, the relevant
public, the level of attentiveness of the different parts of the
relevant public and the similarity of the conflicting trade marks
and goods incorrectly.

Action brought on 14 January 2008 — Mars v OHIM —
Ludwig Schokolade (three dimensional mark representing a
chocolate bar)

(Case T-28/08)

(2008/C 92/64)

Language in which the application was lodged: English

Party requesting the declaration of invalidity of the Community trade
mark: Ludwig Schokolade GmbH & Co. KG

Decision of the Cancellation Division: Rejection of the request for a
declaration of invalidity

Decision of the Board of Appeal: Annulment of the Cancellation
Division's decision and declaration of invalidity of the Com-
munity trade mark

Pleas in law: Infringement of Articles 7(1)(b) and (3), 51(2), 73
and 74(1) of Council Regulation No 40/94, as:

— the Board of Appeal ought to have concluded that the shape
in issue was a significant departure from the norms and
customs of the relevant sector;

— the Board of Appeal required proof

the mark had
acquired distinctiveness in every relevant Member State on a
country by country basis and not based on whether it had
acquired distinctiveness in a substantial part of the Com-
munity market for chocolate bars;

that

— the Board of Appeal relied, in the contested decision, on a
point which had not previously been raised either by the
Office, or by Ludwig Schokolade.

Action brought on 23 January 2008 — Quantum v OHIM
— Quantum Corporation (Quantum CORPORATION)

(Case T-31/08)

(2008/C 92/65)

Language in which the application was lodged: English

Parties

Applicant: Mars, Inc. (McLean, United States) (represented by: A.
Bryson, Barrister, and G. Mills, Solicitor)

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

Parties

Other party to the proceedings before the Board of Appeal: Ludwig
Schokolade GmbH & Co. KG (Bergisch Gladbach, Germany)

Applicant: Quantum Corp. (San Jose, United States) (represented
by: J. Barry, Sollicitor)

C 92/32

EN

Official Journal of the European Union

12.4.2008

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

Action brought on 18 January 2008 — Evropaïki Dynamiki
v Commission

Other party to the proceedings before the Board of Appeal: Quantum
Corporation Ltd (Lefkosia, Cyprus)

Form of order sought

— The decision of the First Board of Appeal of 17 October

2007 in Case R 1271/2006-1 be annulled;

— appeal number R 1271/2006-1 be allowed;

— opposition number B 936 288 be permitted to stand and

proceedings to continue;

— OHIM pay Quantum's costs both in these proceedings and

in the appeal proceedings before the OHIM.

Pleas in law and main arguments

(Case T-32/08)

(2008/C 92/66)

Language of the case: English

Parties

Applicant:
Systimata
Evropaïki Dynamiki — Proigmena
Tilepikoinonion Pliroforikis kai Tilematikis AE (Athens, Greece)
(represented by: N. Korogiannakis, lawyer)

Defendant: Commission of the European Communities

Applicant for the Community trade mark: Quantum Corporation
Limited

Form of order sought

Community trade mark concerned: The figurative Community trade
the sign ‘Q’ containing word elements
mark composed of
in
‘QUANTUM CORPORATION’
classes 35, 36 and 42 — Application No 3 773 355

and services

for goods

Proprietor of the mark or sign cited in the opposition proceedings: The
applicant

Mark or sign cited: The national and Community word marks
‘QUANTUM’ for goods and services in class 9 and the Com-
munity figurative mark ‘Q’ for goods and services in classes 9
and 42

— Annul the decision of the Commission to evaluate the appli-
cant's bid as not successful and award the contract to the
successful contractor;

— order

the Commission to pay the applicant's damages
suffered on account of the tendering procedure in question
for an amount of EUR 65 565;

— order the Commission to pay the applicant's legal and other
costs and expenses incurred in connection with this applica-
tion, even if the current application is rejected.

Decision of the Opposition Division: Declared the opposition inad-
missible

Pleas in law and main arguments

Decision of the Board of Appeal: Dismissed the appeal

Pleas in law: The applicant claims that the contested decision is
based on incorrect facts as it fails to take into account the exis-
tence and nature of the opposition guidelines. The applicant
further submits that the contested decision breached its legiti-
mate expectation that the practice outlined in the opposition
guidelines would be factually correct, since other potential
opponents could also have relied on them. Further, the applicant
contends that it had a legitimate expectation that the guidelines
would be followed and that it would receive a ‘standard letter
208’ requiring it to file a translation of its writ in order to
the applicant
comply with the formal requirements. Finally,
claims that OHIM must incur liability pursuant to Article 114
of Council Regulation (EC) No 40/94 in respect of its failure to
comply with its obligations to provide up-to-date and accurate
guidelines.

its claims the applicant argues that,

In support of
in the
framework of the tendering procedure ENV.A.1/SER/2007/0032
for the ‘Market analysis in view of developing a new approach
Europeans” website’
for
(OJ 2007/S 83-100898) the European Commission failed to
comply with its obligations foreseen in the Financial Regu-
lation (1), its Implementing Rules and Directive 2004/18/EC (2).

“Environment

for Young

the

The applicant moreover submits that the contracting authority
committed several manifest errors of assessment which resulted
in the rejection of its bid. Furthermore, the contracting authority
allegedly infringed its obligation to state reasons for its decision
and, in particular, to inform the applicant on the relative merits
of the successful tenderer.

The applicant requests, hence, that the decision of the European
Commission to reject its bid and to award the contract to the
successful
is
ordered to pay all legal expenses related to the proceedings even
in case the application is rejected. In the alternative, since the

tenderer be annulled and that

the defendant