Case T-139/08: Action brought on 11 April 2008 — Loufrani v OHIM (half-smiley)
Date: 2008-04-11
Institutions: Court of First Instance
Subjects: European Union Intellectual Property Office, action for annulment (EU), designs and models, trade-mark law

C 142/34

EN

Official Journal of the European Union

7.6.2008

Form of order sought

— order the Commission to pay the following sums (excluding
interest), increased by the costs of borrowing, further up-to-
date particulars of which will be provided at
the oral
hearing, by way of damages to each of the applicants:

Pelagic

— Cavankee Fishing Company

2 748 276,00 EUR

— Ocean Trawlers Ltd

— Mullglen Ltd.

— Eamon McHugh

— Joseph Doherty

— Brendan Gill

— Eileen Oglesby

— Noel McGing

— Larry Murphy

— Thomas Flaherty

— Pauric Conneely

Polyvalent

— Island Trawlers Limited

— Cathal Boyle

— Eugene Hannigan

— Peter McBride

— Hugh McBride

— Partick Fitzpatrick

— Patrick O'Malley

(a) ‘Capal Ban’

(b) ‘Capal Or’

— Cecil Sharkey

6 740 000,00 EUR

2 690 000,00 EUR

3 036 187,00 EUR

2 640 408,00 EUR

2 717 665,00 EUR

2 994 349,00 EUR

2 444 000,00 EUR

4 150 000,00 EUR

2 140 000,00 EUR

1 930 000,00 EUR

672 000,00 EUR

651 200,00 EUR

125 000,00 EUR

106 848,00 EUR

106 848,00 EUR

177 573,00 EUR

205 698,00 EUR

496 800,00 EUR

205 697,88 EUR

— order the Commission to pay the costs of these proceedings.

Pleas in law and main arguments

In the present case, the applicants are bringing an action for
liability arising from the losses they claim to
non-contractual
have suffered as a result of
the Commission's Decision
2003/245/EC of 4 April 2003 on the requests submitted by the
Member States (1) in so far as it provided for the rejection of the
request by Ireland in respect of the applicants' vessels. This deci-
sion was partially annulled by the Court's judgment of 13 June
2006 (2).

The applicants state in support of their contentions that in
adopting the annulled decision the Commission breached a
number of superior rules of law intended to confer rights on
individuals by grave and manifest disregard of the discretion
conferred upon the Commission by Article 4(2) of Decision
97/413/EC (3) as found by the Court in its judgment in the
Joined Cases T-218/03 to T-240/03. The applicants claim that
the Commission also infringed: the principle of equal treatment,
the principle of care and sound administration, the freedom to

pursue a trade or profession and the principle of proportion-
ality. They claim that in such circumstances, the mere infringe-
ment of Community law establishes a sufficiently serious breach
of law.

Furthermore, the applicants claim that they have suffered and
continue to suffer substantial loss and damage as a direct conse-
quence of the Commission adopting the annulled decision as
they were required to purchase on the market
tonnage to
replace safety tonnage requested but not granted and, for some
applicants, as regards to the losses flowing from days lost at sea.
Therefore, the applicants claim that their damage is actual and
certain.

As proof of the existence of a causal connection between the
conduct and damage at issue, the applicants state that if the
Commission had not acted unlawfully in refusing properly to
consider the applications for safety tonnage submitted by the
applicants, none of them would have been required to purchase
additional tonnage.

to

(1) Decision C(2003) 1113 final on the requests received by the
Commission
guidance
the
programme (MAGP IV) objectives to take into account improvements
on safety, navigation at sea, hygiene, product quality and working
conditions for vessels of more than 12 m in length overall (OJ 2003
L 90, p. 48).

fourth multi-annual

increase

(2) Joined Cases T-218/03 to T-240/03, Boyle and Others v Commission

[2006] ECR II-1699.

(3) Council Decision of 26 June 1997 concerning the objectives and
detailed rules for restructuring the Community fisheries sector for
the period from 1 January 1997 to 31 December 2001 with a view
to achieving a balance on a sustainable basis between resources and
their exploitation (OJ L 175, p. 27).

Action brought on 11 April 2008 — Loufrani v OHIM
(half-smiley)

(Case T-139/08)

(2008/C 142/62)

Language of the case: English

Parties

Applicant: Franklin Loufrani (London, United Kingdom) (repre-
sented by: A. Deutsch, lawyer)

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

Form of order sought

— Annul

the Decision of

the Fourth Board of Appeal of

7 February 2008 in case R 0958/2007-4); and

— order OHIM to pay the costs.

7.6.2008

EN

Official Journal of the European Union

C 142/35

Pleas in law and main arguments

Community trade mark concerned: The figurative mark ‘half-smiley’
for goods in classes 14, 18 and 25 — application No 893 580

Decision of the examiner: Refusal of the application for all goods

Decision of the Board of Appeal: Dismissal of the appeal

Pleas in law: Infringement of Article 7(1)(b) of Council Regu-
lation No 40/94 as the mark acquired the minimum degree of
distinctiveness required to be registered.

Decision of the Board of Appeal: Annulment of the Cancellation
Division's decision and dismissal of the request for declaration
of invalidity

Pleas in law: The Second Board of Appeal erred in establishing
that the previous final decisions between the same parties and
concerning the same trade mark are binding in the subsequent
action for invalidity before the Cancellation Division and the
Board of Appeal; Infringement of Article 8(1)(b) and 8(5) of
Council Regulation No 40/94 as the challenged trade mark is
similar to an earlier trade mark.

Action brought on 14 April 2008 — Ferrero v OHIM —
Tirol Milch (TiMi KINDERJOGHURT)

Action brought on 2 April 2008 — Italian Republic v
Commission of the European Communities

(Case T-140/08)

(2008/C 142/63)

Language in which the application was lodged: English

(Case T-142/08)

(2008/C 142/64)

Language of the case: Italian

Parties

Applicant: Ferrero SpA (Alba, Italy) (represented by: C. Gielen,
lawyer, and F. Jacobacci, lawyer)

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

Other party to the proceedings before the Board of Appeal: Tirol
Milch rGmbH (Innsbruck, Austria)

Form of order sought

— Annul the decision of the Second Board of Appeal of the
Office for Harmonisation in the Internal market (Trade Marks
and Designs) of 30 January 2008 in case R 628/2007-2;
and

— order OHIM to pay the costs.

Pleas in law and main arguments

the application for a
Registered Community trade mark subject of
declaration of
invalidity: A word mark consisting of the words
‘TiMi KINDERJOGHURT’ for goods in class 29 — application
No 792 978

Proprietor of the Community trade mark: Tirol Milch reg. Gen. mbH

Parties

Applicant: Italian Republic (represented by: P. Gentili, avvocato
dello Stato)

Defendant: Commission
the
European Personnel Selection Office

of

European Communities,

Form of order sought

The applicant claims that the Court should:

— annul Notice of open competitions EPSO/AD/116/08 and
EPSO/AD/117/08 to constitute a reserve list comprising
30 Administrator posts (AD8) and 20 Principal Adminis-
trator posts (AD11) in the field of fraud prevention;

— annul Notice of open competition EPSO/AST/45/08 to
constitute a reserve list comprising 30 Assistant posts
(AST4) in the field of fraud prevention.

Pleas in law and main arguments

The pleas in law and principal arguments are similar to those
put forward in Case T-117/08 Italy v Commission (1).

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

(1) Not yet published in the Official Journal of the European Union.

Decision of the Cancellation Division: Invalidity of the challenged
trade mark