Case T-292/08: Action brought on 23 July 2008 — Inditex v OHIM
Date: 2008-07-23
Institutions: Court of First Instance
Subjects: EU trade mark, European Union Intellectual Property Office, action for annulment (EU), jewellery and goldsmith's articles, textile industry, trade-mark law

C 236/16

EN

Official Journal of the European Union

13.9.2008

Pleas in law and main arguments

Applicant for the Community trade mark: The applicant (formerly
Mission Pharmacal Company)

Community trade mark concerned: The word mark ‘CITRACAL’ for
goods in class 5, application No 1 757 855

Proprietor of the mark or sign cited in the opposition proceedings: The
other party to the proceedings before the Board of Appeal
(formerly Laboratorios Diviser-Aquilea, SL)

Mark or sign cited: Spanish trade mark registration No 223 532
of the mark ‘CICATRAL’ for goods in classes 1 and 5

Decision of the Opposition Division: Uphold the opposition with
respect to all the contested goods

Decision of the Board of Appeal: Dismissal of the appeal

Pleas in law: The Board of Appeal erred in its assessment of the
evidence of proof-of-use, and in particular on the issue of the
provision of a suitable translation of the goods in relation to
which the mark cited in the opposition proceedings was used.
Further, the Board of Appeal erred in its assessment of the exis-
tence of a likelihood of confusion between the conflicting trade
marks.

implementing Article 2(3) of Regulation (EC) No 2580/2001 on
specific restrictive measures directed against certain persons and
entities with a view to combating terrorism and repealing Deci-
sion 2007/868/EC.

In support of its application, the applicant submits that the
contested decision should be annulled because, in so far as it
relates to the inclusion of the applicant on the list of terrorist
organisations, there was no relevant decision at the time from a
competent national authority sufficient to form any justification
for the decision. In addition, the applicant claims that the deci-
sion should be annulled because while it was said to be based
on ‘new information’ and on a decision from a competent
authority other than that of the United Kingdom, the evidence
on which the Council relied was not disclosed to the applicant
before adopting the decision. Further, the applicant claims that
no justification was given as to why such information was to be
treated as new, or relevant.

The applicant puts forward that the contested decision was
taken without any proper evaluation of the new information
and on whether that constituted concrete and reliable evidence
upon which the Council was entitled to act, in order to prove
that the applicant was engaged in terrorism.

Furthermore, the applicant contends that the contested decision
was adopted in violation of the applicant's right to be heard and
its fundamental rights. The applicant submits, finally, that the
contested decision was
adopted in circumstances which
amounted to an abuse or misuse of procedures and/or powers.

Action brought on 21 July 2008 — People's Mojahedin of
Iran v Council

(1) OJ 2008 L 188, p. 21.

(Case T-284/08)

(2008/C 236/27)

Language of the case: English

Parties

Applicant: People's Mojahedin Organization of Iran (Auvers sur
Oise, France)
lawyer and D.
Vaughan, QC)

(represented by:

J.-P. Spitzer,

Action brought on 23 July 2008 — Inditex v OHIM

(Case T-292/08)

(2008/C 236/28)

Language in which the application was lodged: Spanish

Defendant: Council of the European Union

Form of order sought

Parties

— To annul Decision 2008/583/EC of the Council insofar as it

applies to the applicant;

— To order the defendant to pay the applicant's costs.

Applicant:
(Arteixo,
Industria de Diseño Textil, SA (Inditex)
Spain) (represented by: E. Armijo Chávarri and A. Castán Pérez-
Gómez, lawyers)

Pleas in law and main arguments

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

The applicant seeks, pursuant to Article 230 EC, partial annul-
ment and in so far as it concerns the applicant, of Council Deci-
sion 2008/583/EC of 15 July 2008 (1) (‘the contested decision’)

Other party to the proceedings before the Board of Appeal of OHIM:
Roberto Fernando Marín Díaz de Cerio (Logroño, Spain)

13.9.2008

EN

Official Journal of the European Union

C 236/17

Form of order sought

— Declare the action against the Decision of the Second Board
of Appeal of OHIM of 24 April 2008 lodged in time and in
the required form and, via the appropriate procedure, order
the annulment of that decision in respect of all or part of
the goods refused.

Pleas in law and main arguments

Applicant for a Community trade mark: The applicant.

Community trade mark concerned: Word mark ‘OFTEN’ (application
No 2 798 270) for goods and services in Classes 3, 9, 14, 16,
18, 25 and 35.

Proprietor of the mark or sign cited in the opposition proceedings:
Roberto Fernando Marín Díaz de Cerio.

Mark or sign cited in opposition: Spanish word and figurative
marks ‘OLTEN’ and Spanish figurative mark ‘OLTENWATCH’ for
goods in Class 14.

Decision of
opposition.

the Opposition Division: Upholding in part of the

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

Pleas in law: Principally, infringement of Articles 61(1) and 62(1)
of Regulation (EC) No 40/94 on the Community trade mark and,
as a subsidiary plea, infringement of Articles 43(2) and 8(1)(b)
of that regulation.