Case T-257/08: Action brought on 30 June 2008 — Biotronik v OHIM (BioMonitor)
Date: 2008-06-30
Institutions: Court of First Instance
Subjects: EU trade mark, European Union Intellectual Property Office, action for annulment (EU), medical device, trade-mark law

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).