Case T-104/08: Action brought on 23 February 2008 — ars Parfum Creation & Consulting v OHIM (shape of a perfume bottle)
Date: 2008-02-23
Institutions: Court of First Instance
Subjects: EU trade mark, European Union Intellectual Property Office, action for annulment (EU), cosmetic product, trade-mark law

C 107/38

EN

Official Journal of the European Union

26.4.2008

— Infringement of Articles 73 and 74 of Regulation No 40/94
as there is no or an insufficient statement of reasons for the
contested decision and the facts have not been examined
sufficiently

— Misuse of powers as the defendant took extraneous consid-
erations into account in its statement of reasons for the
contested decision in respect of the requirement of avail-
ability.

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

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

Appeal brought on 25 February 2008 by Asa Sundholm
against the judgment of the Civil Service Tribunal delivered
on 13 December 2007 in Case F-27/07 Sundholm v
Commission

(Case T-102/08 P)

(2008/C 107/64)

Language of the case: French

Parties

Appellant: Asa Sundholm (Brussels, Belgium) (represented by S.
Orlandi, A. Coolen, J.-N. Louis, E. Marchal, lawyers)

by which she sought the annulment of the Commission's deci-
sion drawing up her Career Development Report for the period
from 1 July 2001 to 31 December 2002, since the first report
for that period was annulled by the judgment of the Court of
First Instance of 20 April 2005 (1).

in law alleging an error of

In support of her appeal the appellant puts forward a single
plea
infringement of
Article 233 EC and failure to comply with Community law in
relation to the special obligation to state reasons.

law,

She claims that the CST erred in law by disregarding the scope
of the judgment of the Court of First Instance of 20 April 2005
and of Article 233 EC in holding that the Appointing Authority
was not
required, when taking the necessary measures to
comply with the judgment and in taking account of its grounds
and the time lapse between the annulled decision and that
adopted pursuant to that judgment, to provide a more extensive
statement of reasons in respect of the obligation on the adminis-
tration to state reasons in a specific manner for a Development
Report drawn up pursuant to a judgment of the Court of First
Instance and, according to the appellant, out of time.

In addition, she submits that the CST disregarded the force of
res judicata with absolute effect of a judgment of the Court of
First
the
comments unlawfully taken into consideration constitutes a fair
rectification of the evaluation of the appellant.

Instance by accepting that

the mere deletion of

(1) Case T-86/04 Sundholm v Commission, not published in the ECR.

Other party to the proceedings: Commission of
Communities

the European

Action brought on 23 February 2008 — ars Parfum
Creation & Consulting v OHIM (shape of a perfume bottle)

Form of order sought by the appellant

— quash the judgment of the Civil Service Tribunal (Second

Chamber) of 13 December 2007 in Case F-27/07;

— give judgment again and do what the first court ought to
have done: annul the decision drawing up the applicant's
for the period from 1 July
Career Development Report
2001 to 31 December 2002, adopted pursuant to the judg-
ment of the Court of First Instance of 20 April 2005;

(Case T-104/08)

(2008/C 107/65)

Language in which the application was lodged: German

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

Parties

appeal.

Pleas in law and main arguments

Applicant: ars Parfum Creation & Consulting GmbH (Cologne,
Germany) (represented by: A. Späth and G. Hasselblatt, lawyers)

In her appeal, the appellant seeks the setting aside of the judg-
ment of the Civil Service Tribunal (CST) dismissing the action

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

26.4.2008

EN

Official Journal of the European Union

C 107/39

Form of order sought

— Annul the decision of the First Board of Appeal of the
(Trade
of 8 November 2007 (Case

Office for Harmonisation in the Internal Market
Marks
No R 1656/2006-1);

and Designs)

— Order the defendant to pay the costs.

Pleas in law and main arguments

Community trade mark concerned:
trade
mark in the shape of a perfume bottle for goods in class 3
(Application No 4 995 361).

the three-dimensional

Decision of the Examiner: Dismissal of the application.

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

Pleas in law: Infringement of Article 7(1)(b) of Regulation (EC)
No 40/94 (1), because the trade mark applied for has a distinc-
tive character.

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

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

— uphold the claims for annulment and for compensation
submitted by the appellant to the Civil Service Tribunal;

— order the Commission to pay the costs of both instances.

Pleas in law and main arguments

In his appeal, the appellant is seeking the annulment of the
judgment of the Civil Service Tribunal (the ‘Tribunal’) dismissing
his application, on the one hand, for the annulment of the
competition
decision of
EPSO/A/19/04 not to admit the applicant to the oral test in that
competition and, on the other, for damages for the material and
non-material damage which he allegedly suffered.

selection board in general

the

the appellant pleads a misunder-
In support of his appeal,
standing of evidence produced before the Tribunal, namely, a
copy of the written test.

in addition, an error in the Tribunal's
The applicant pleads,
reasoning concerning the absence of a manifest error of assess-
ment on the part of the president of the selection board in the
comparison between the mark given to the applicant and the
literal assessment in the evaluation sheet.

Action brought on 27 February 2008 — CPEM v
Commission

Appeal brought on 26 February 2008 by Kris Van
Neyghem against
the Civil Service
the judgment of
Tribunal delivered on 13 December 2007 in Case F-73/06,
Van Neyghem v Commission

(Case T-105/08 P)

(2008/C 107/66)

Language of the case: French

Parties

(Case T-106/08)

(2008/C 107/67)

Language of the case: French

Parties

Applicant: Centre de promotion de l'emploi par la micro-entre-
(represented by: C. Bonnefoi,
prise (CPEM)
lawyer)

(Marseille, France)

Appellant: Kris Van Neyghem (Vissenken, Belgium) (represented
by S. Rodrigues and C. Bernard-Glanz, lawyers)

Defendant: Commission of the European Communities

Other party to the proceedings: Commission of
Communities

the European

Form of order sought

Form of order sought by the appellant

— declare the present appeal admissible;

— annulment of the debit note;

— recognise a right to damages for public detriment to the
reputation of a body acting in the context of a task of
general interest (estimated at EUR 100 000);

— annul the judgment of the Civil Service Tribunal (Second
Chamber) delivered on 13 December 2007 in Case F-73/06;

— repayment of lawyers' fees and the costs of legal assistance

made necessary, proof of which can be provided.