Case T-251/08: Action brought on 26 June 2008 — Vion v OHIM (PASSION FOR BETTER FOOD)
Date: 2008-06-26
Institutions: Court of First Instance
Subjects: EU trade mark, European Union Intellectual Property Office, action for annulment (EU), food processing, foodstuff, pet food, trade-mark law

C 223/52

EN

Official Journal of the European Union

30.8.2008

Pleas in law and main arguments

Pleas in law and main arguments

Registered Community trade mark in respect of which a declaration of
invalidity has been sought: the figurative mark ‘TIR 20 FILTER
CIGARETTES’ for goods in Class 34 (Community trade mark
No 400 804).

Proprietor of the Community trade mark: the applicant.

Applicant for the declaration of invalidity: AD Bulgartabac Holding.

Decision of the Cancellation Division: cancellation of the relevant
Community trade mark.

Decision of
appeal.

the Board of Appeal: dismissal of

the applicant's

Pleas in law: conditions of admissibility to be taken into consid-
eration ex officio by OHIM concerning AD Bulgartabac
Holding's application were not examined, contrary to Com-
munity law, to Regulation (EC) No 40/94 (1) and to other proce-
dural principles.

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

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

By the present appeal, the appellant seeks annulment of the
judgment of the Civil Service Tribunal (CST) of 16 April 2008,
delivered in Case F-73/07 Doktor v Council, dismissing the action
by which the applicant had sought, on the one hand, annulment
of the decision of the Council to dismiss the applicant at the
end of his probationary period and, on the other, damages in
compensation for the professional, financial and non-pecuniary
losses allegedly suffered.

In support of his appeal, the appellant submits that the CST
i) distorted the clear sense of certain pieces of evidence, in par-
ticular by basing a number of its conclusions on an incorrect
material assessment of the elements of the documents submitted
to it; ii) infringed the applicant's rights of the defence by not
taking into consideration or not answering a number of
elements or arguments put before it; and iii) committed two
errors in law with respect to its interpretation of Community
law relating to the applicant's right to complete his probationary
period under normal conditions and to the administration's
ability to supplement the reasoning of a complaint during the
written procedure before the Community Courts.

Appeal brought on 23 June 2008 by Frantisek Doktor
against the judgment of the Civil Service Tribunal delivered
on 16 April 2008 in Case F-73/07, Doktor v Council

(Case T-248/08 P)

(2008/C 223/91)

Language of the case: French

Action brought on 26 June 2008 — Vion v OHIM
(PASSION FOR BETTER FOOD)

(Case T-251/08)

(2008/C 223/92)

Language in which the application was lodged: German

Parties

Parties

Appellant: Frantisek Doktor (Bratislava, Slovakia) (represented by
S. Rodrigues and C. Bernard-Glanz, lawyers)

Applicant: Vion NV (Best, Netherlands)
A. Klinger, lawyer)

(represented by

Other party to the proceedings: Council of the European Union

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

Form of order sought by the appellant

— Annul the judgment delivered by the European Union Civil

Service Tribunal on 16 April 2008 in Case F-73/07;

— Grant

the pleas

seeking annulment and compensation

submitted by the applicant at first instance;

Form of order sought

— Annul the decision of the Fourth Board of Appeal of the
(Trade
Office for Harmonisation in the Internal Market
Marks and Designs) of 25 April 2008 (Case R 562/2007-4);

— Order the defendant at first instance to pay all the costs of

the action for annulment and of the appeal.

— order the defendant to pay the costs.

30.8.2008

EN

Official Journal of the European Union

C 223/53

Pleas in law and main arguments

Community trade mark concerned: Word mark ‘PASSION FOR
BETTER FOOD’ for goods in classes 5, 29 and 30 (Application
for registration No 5 039 946).

Decision of the Examiner: Application dismissed.

Decision of the Board of Appeal: Appeal dismissed.

Pleas in law: Infringement of Article 7(1)(b) of Regulation (EC)
No 40/94, (1) as the trade mark applied for is sufficiently
distinctive.

not represent an expression of opinion, since the letter did not
provide any replies on the substance of the requests made by
the applicant.

The applicant also claims that,
in the area of competition, a
complainer is entitled to expect that its complaint will be exam-
ined thoroughly by the Commission, and that a reasoned
opinion will be expressed.

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

Community trade mark (OJ 1993 L 11, p. 1).

Action brought on 30 June 2008 — Biotronik v OHIM
(BioMonitor)

Action brought on 26 June 2008 — Associazione
Giullemanidallajuve v Commission

(Case T-254/08)

(2008/C 223/93)

Language of the case: French

Parties

Applicant: L'Associazione Giullemanidallajuve (Garibaldi,
(represented by: L.Misson, G. Ernes and A. Kettels, lawyers)

Italy)

Defendant: Commission of the European Communities

(Case T-257/08)

(2008/C 223/94)

Language of the case: German

Parties

Applicant: Biotronik Meβ- und Therapiegeräte GmbH (Berlin,
Germany) (represented by: U. Sander and R. Böhm, lawyers)

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 the
(Trade
of 24 April 2008 in Case

Office for Harmonisation in the Internal Market
Marks
No R 466/2007-4;

and Designs)

Form of order sought

— Order the defendant to pay the costs.

— declare that the Commission has failed to act;

— instruct the Commission to use its powers and to reply to

the complaint lodged by the applicant in May 2007;

— obtain all the information necessary for that purpose.

Pleas in law and main arguments

The applicant claims that theCommission failed to fulfil its obli-
gation to act in that after being invited to do so it did not
express its opinion on the complaint lodged by the applicant
with the Commission in May 2007 concerning alleged contra-
ventions of Articles 81 and 82 EC committed by the Federa-
zione Italiana Giuoco Calcio (FIGC), the Comitato Olimpico
Nazionale Italiano (CONI),
the Union of European Football
Associations (UEFA) and the Fédération Internationale de Foot-
ball Association (FIFA).

The applicant considers that the letter which was sent to it by
the Commission in March 2008 further to the invitation to act
and which informed it that the case was being dealt with, does

Pleas in law and main arguments

Community trade mark concerned: Word mark ‘BioMonitor’ for
goods and services in Classes 9, 10 and 38, in which the addi-
tional list of goods for Class 10 would be restricted (Application
No 4 556 023).

Decision of the Examiner: Application rejected.

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

Pleas in law: Infringement of Article 7(1)(b) and (c) of Regulation
(EC) No 40/94 (1) in that the trade mark applied for does not
lack distinctive character and it is not a descriptive term.

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

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