Case T-187/08: Action brought on 13 May 2008 — Rodd & Gunn Australia v OHIM (Representation of a dog)
Date: 2008-05-13
Institutions: Court of First Instance
Subjects: EU trade mark, European Union Intellectual Property Office, action for annulment (EU), clothing industry, leather industry, pulp and paper industry, trade-mark law

5.7.2008

EN

Official Journal of the European Union

C 171/47

Pleas in law and main arguments

Pleas in law and main arguments

On 29 March 1996 the European Community, represented by
the Commission, entered into a contract BU 183/95 UK/AT
with Sidney C. Banks Plc and Jenbacher Energiesysteme AG for
the implementation of the project ‘Advanced automated gasifier
with CHP using waste wood as fuel’ under the Community
activities in the field of non-nuclear energy (1). Pursuant to the
contract provision, the Commission made an advance payment
of its contribution for the project to the designated contract
coordinator, Sydney C. Banks Plc.

By fax dated 25 September 1996, Sidney C. Banks Plc informed
it had decided to withdraw from the
the Commission that
project. On 17 April 1998 the European Community, repre-
sented by the Commission, entered into Addendum No 1 to the
contract by which Atlantic Energy Ltd replaced Sidney C. Banks
Plc as a party to, and coordinator under the contract.

Pursuant to clause 2 of the Addendum Sidney C. Banks Plc
transferred the advance payment received from the Commission
(plus interest) to Atlantic Energy Ltd in April 1998.

The Commission claims an order that Atlantic Energy Ltd repay
the advance payment plus interest on the grounds either that
the project never effectively commenced or, if it did, was termi-
nated by the Commission.

Applicant for a Community trade mark: Leder & Schuh AG.

Community trade mark concerned: The word and figurative mark
‘jello SCHUHPARK’ for goods in Classes 1, 3, 9, 14, 16, 18, 21,
24-26 and 28 (Application No 1 269 372).

Proprietor of the mark or sign cited in the opposition proceedings:
Schuhpark Fascies GmbH.

Mark or sign cited in opposition: The German word mark ‘Schuh-
park’ for goods in Class 25 (No 1 007 149), in respect of oppo-
sition to the registration for goods in Classes 18, 21, 25 and 26.

Decision of the Opposition Division: Opposition upheld in part
and application rejected in part.

Decision of the Board of Appeal: Annulment of the appealed deci-
sion and rejection of the opposition.

Pleas in law: Infringement of the second sentence of Article 43(2)
and Article 43(3) of Regulation (EC) No 40/94 (1) and breach of
the
second sentence of Rule 22(2) of Regulation (EC)
No 2868/95 (2) in that the applicant has sufficiently proved that
the opposition mark has been used in a manner which preserves
its rights.

(1) Council Decision 94/806/EC of 23 November 1994 adopting a
specific programme for research and technological development,
including demonstration, in the field of non-nuclear energy (1994 to
1998) (OJ L 334, 22.12.1994, p. 87).

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

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

(2) Commission Regulation (EC) No 2868/95 of 13 December 1995
implementing Council Regulation (EC) No 40/94 on the Community
trade mark (OJ 1995 L 303, p. 1).

Action brought on 16 May 2008 — Schuhpark Fascies v
OHIM — Leder & Schuh (jello SCHUHPARK)

Action brought on 13 May 2008 — Rodd & Gunn
Australia v OHIM (Representation of a dog)

(Case T-183/08)

(2008/C 171/89)

(Case T-187/08)

(2008/C 171/90)

Language in which the application was lodged: German

Language in which the application was lodged: English

Parties

Applicant: Schuhpark Fascies GmbH (Warendorf, Germany)
(represented by: A. Peter and J. Braune, lawyers)

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

Other party to the proceedings before the Board of Appeal of OHIM:
Leder & Schuh AG (Graz, Austria)

Parties

Applicant: Rodd & Gunn Australia Limited (Wellington, New
Zealand) (represented by: B. Brandreth, Barrister and N. Jenkins,
Solicitor)

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

Form of order sought

Form of order sought

— Annul the decision of the Fourth Board of Appeal of the
Office for Harmonisation in the Internal Market
(Trade
Marks and Designs) of 13 March 2008 in appeal proceed-
ings R 1560/2006-4;

— Order the defendant to pay the costs incurred by the appli-

cant.

— Annul the decision of the Fourth Board of Appeal of the
Office for Harmonisation in the Internal Market (Trade Marks
and Designs) of 12 March 2008 in case R 1245/2007-4;

— order restitutio in integrum in respect of Community trade

mark No 339 218; and

— order OHIM to pay the costs.

C 171/48

EN

Official Journal of the European Union

5.7.2008

Pleas in law and main arguments

— order the European Commission to pay the costs.

Community trade mark concerned: The figurative mark consisting
of a representation of a dog for goods in classes 16, 18, and 25
— Community trade mark No 339 218

Decision of the Trade Marks and Register Department: Refusal of the
application for restitutio in integrum

Decision of the Board of Appeal: Dismissal of the appeal

Pleas in law: Infringement of Article 47 of Council Regulation
No 40/94 as renewal of the Community trade mark is permitted
not only to the proprietor of such or to its professional repre-
sentative; the Board of Appeal erred in law and in its assessment
of the facts in holding that the Applicant and its authorised
representative had failed to exercise due care in the circum-
stances; the Board of Appeal erred in law in holding that it was
careless of the Applicant to appoint Computer Patent Annuities
Limited, a trade marks renewals agency, to renew its marks.

Pleas in law and main arguments

The applicant seeks the declaration that the Commission failed
to annul the decision taken by the Office for Harmonisation in
the Internal Market
(OHIM) awarding multiple framework
contracts under the tender procedure AO/026/06 of the OHIM
on ‘E-Alicante: consultancy services, audits and studies’ (1) and
that
failed to terminate the corresponding specific
contracts under the framework.

it has

The pleas in law and main arguments raised by the applicant
are identical
to those raised in Case T-176/08 Infeurope v
Commission.

(1) OJ 2006/S 210-223510.

Action brought on 13 May 2008 — Infeurope v
Commission

Order of the Court of First Instance of 7 May 2008 —
Germany and Deutsche Post v Commission

(Case T-188/08)

(2008/C 171/91)

Language of the case: English

(Case T-490/04 and T-493/04) (1)

(2008/C 171/92)

Language of the case: German

Parties

The President of the Court of First Instance (Seventh Chamber)
has ordered that the case be removed from the register.

Applicant: Infeurope SA (Luxembourg, Luxembourg) (represented
by: O. Mader, lawyer)

Defendant: Commission of the European Communities

(1) OJ C 31, 5.2.2005.

Form of order sought

— declare that the European Commission has failed to annul
the decision of awarding the framework contracts under the
call
the OHIM on
consultancy services, audits and studies;

for tenders procedure AO/026/06 of

— declare that the European Commission has failed to termi-
nate the specific contracts concluded under the said frame-
work contracts;

— order the European Commission to pay to the applicant the
sum of EUR 35 950 plus 4 % interest on the amount of
EUR 33 050 from 19 December 2006, plus 4 % interest on
the amount of EUR 2 900 from 14 December 2007; respec-
tively 8 % interest on sum of EUR 35 950 from the date of
judgment;

— order the European Commission to pay to the applicant the
sum of EUR 646 631,27, plus 4 % interest on the said sum
from 14 May 2008, respectively 8 % interest on the said
sum from the date of judgment;

— order the European Commission to produce certain docu-
ments relating to the procedure for evaluating the tenders;

Order of the Court of First Instance of 5 May 2008 —
Fränkischer Weinbauverband v OHIM (three-dimensional
mark ‘Bocksbeutel’)

(Case T-180/06) (1)

(2008/C 171/93)

Language of the case: German

The President of the Fifth Chamber has ordered that the case be
removed from the register.

(1) OJ C 212, 2.9.2006.