Case T-303/08: Action brought on 30 July 2008 — Tresplain Investments v OHIM — Hoo Hing (Golden Elephant Brand)
Date: 2008-07-30
Institutions: Court of First Instance
Subjects: EU trade mark, European Union Intellectual Property Office, action for annulment (EU), supermarket, trade-mark law

C 260/14

EN

Official Journal of the European Union

11.10.2008

Secondly, the appellants maintain, as regards paragraphs 39
to 41 of the contested order, that, in not having discounted the
possibility that the undertaking by the European Parliament,
contained in a decision of 13 February 2006, to reclassify its
employees — who were recruited as temporary servants before
1 May 2004 after having passed an internal or open competi-
tion published before 1 May 2004 and were subsequently
appointed as officials in the same category but in a lower grade
than that in which they would have been appointed before
1 May 2004 — stemmed from an obligation in the Staff Regula-
tions, the CST infringed the case-law cited in paragraph 37 of
the contested order.

Furthermore, the appellants submit that the question whether
there is an obligation stemming from the Staff Regulations is
not a point of fact in respect of which proof should have been
adduced by the appellants, but a point of law which the CST
should have resolved and that a difference in the classification
of officials whose factual and legal situations are identical or
similar stemming from a position adopted subsequently by an
institution other
to which the appellants belong
constitutes a material new fact which warrants a re-examination
of the appellants' classification in grade.

than that

Thirdly, the appellants submit that the CST failed to have regard
to the concept of excusable error in so far as the note in Admin-
istrative Notice No 59-2005, published by the Commission on
20 July 2005, was liable to mislead the appellants regarding the
advisability of submitting a complaint against the classification
decision within the period laid down in the Staff Regulations.

Lastly, the appellants submit that the CST's reasoning infringes
the provisions of the Rules of Procedure concerning the inad-
missibility of actions.

— rule that

the applicant suffered loss as a result of

that

improper conduct;

— rule that the Community is required to compensate that

loss;

— take formal notice that Mr Perry estimates his loss at

EUR 1 000 000;

— order the Community to pay Mr Perry EUR 1 000 000;

— order the Community to pay all the costs and outlays of the

proceedings;

— rule that it is equitable that the Community pay the costs

and fees of the defence, in the sum of EUR 10 000.

Pleas in law and main arguments

seeks compensation for

The applicant
the loss which it
considers it suffered as a result of accusations of misuse of Com-
munity subsidies
in the performance of certain contracts
concluded between the applicant's companies and the Commis-
sion in the context of the European Union humanitarian aid
programmes for Bosnia and the Great Lakes region of Africa.

The pleas and main arguments put forward by the applicant are
identical to those put forward in case T-132/98 Perry Group and
Isibiris v Commission (1).

(1) OJ 1998 C 312, p. 20.

Action brought on 18 July 2008 — Perry v Commission

(Case T-280/08)

(2008/C 260/25)

Language of the case: French

Parties

Action brought on 30 July 2008 — Tresplain Investments v
OHIM — Hoo Hing (Golden Elephant Brand)

(Case T-303/08)

(2008/C 260/26)

Language in which the application was lodged: English

Parties

Applicant: Tresplain Investments Ltd (Hong Kong, China) (repre-
sented by: D. McFarland, Barrister)

Applicant: Claude Perry (Paris, France) (represented by: J. Culioli,
lawyer)

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

Defendant: Commission of the European Communities

Other party to the proceedings before the Board of Appeal: Hoo Hing
Holdings Ltd (Romford, United Kingdom)

Form of order sought

The applicant claims that the Court should:

— rule that the Commission acted improperly;

— rule

that

that

improper

conduct

gives

rise

to the

Form of order sought

— Annul the decision of the First Board of Appeal of the
Office for Harmonisation in the Internal Market (Trade Marks
and Designs) of 7 May 2008 in case R 889/2007-1; and

non-contractual liability of the Community;

— Order OHIM to pay the costs.

11.10.2008

EN

Official Journal of the European Union

C 260/15

Pleas in law and main arguments

Form of order sought

the application for a
Registered Community trade mark subject of
declaration of
invalidity: The figurative mark ‘Golden Elephant
Brand’ for goods in class 30 — Community trade mark registra-
tion No 241 810

— Annul the decision of the First Board of Appeal of the
Office for Harmonisation in the Internal Market (Trade Marks
and Designs) of 7 May 2008 in case R 1199/2007-1; and

— Order the defendant to pay the costs.

Proprietor of the Community trade mark: The applicant

Party requesting the declaration of invalidity of the Community trade
mark: The other party to the proceedings before the Board of
Appeal

Trade mark right of the party requesting the declaration of invalidity:
The unregistered figurative mark ‘GOLDEN ELEPHANT’, which
had been in use in the United Kingdom

Decision of the Cancellation Division: Rejection of the application
for a declaration of invalidity

Decision of the Board of Appeal: Annulment of the decision of the
Cancellation Division

Pleas in law: Infringement of Article 73 and 74(1) of Council
Regulation No 40/94 as the Board of Appeal erred by taking
into account alleged facts, as well as legal presumptions and
assumptions that had not been introduced or substantiated by
the parties, while at the same time it refused to take into
account other facts, evidence and arguments advanced by the
applicant;
infringement of Article 8(4) of Council Regulation
40/94 as the Board of Appeal erred in its finding that there was
a likelihood of relevant confusion between the trade marks
concerned and, as a result, a likelihood of damage.

Action brought on 7 August 2008 — Aldi Einkauf v OHIM
— Goya Importaciones y Distribuciones (4 OUT Living)

(Case T-307/08)

(2008/C 260/27)

Language in which the application was lodged: English

Parties

Applicant: Aldi Einkauf GmbH & Co. OHG (Essen, Germany)
(represented by: N. Lützenrath, U. Rademacher, L. Kolks, C.
Fürsen, lawyers)

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

Other party to the proceedings before the Board of Appeal: Goya
Importaciones y Distribuciones SL (Cuarte de Huerva, Spain)

Pleas in law and main arguments

Applicant for the Community trade mark: The applicant

Community trade mark concerned: The figurative mark ‘4 OUT
Living’ for goods and services in classes 18, 25 and 28

Proprietor of the mark or sign cited in the opposition proceedings: The
other party to the proceedings before the Board of Appeal

Mark or sign cited: Spanish trade mark registration No 2 604 969
of the figurative mark ‘Living & Co’ for goods and services in
classes 3, 14, 16, 18, 21, 25, 34 and 35

Decision of
partially

the Opposition Division: Upheld the opposition

Decision of the Board of Appeal: Dismissal of the appeal

Pleas in law: Infringement of Article 8(1)(b) of Council Regu-
lation No 40/94 as the Board of Appeal erred in its finding that
there is a risk of confusion between the trade marks concerned.

Action brought on 5 August 2008 — Parfums Christian
Dior v OHIM — Consolidated Artists (MANGO adorably)

(Case T-308/08)

(2008/C 260/28)

Language in which the application was lodged: English

Parties

Applicant: Parfums Christian Dior SA (Paris, France) (represented
by: E. Cornu, D. Moreau and F. de Visscher, lawyers)

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

Other party to the proceedings before the Board of Appeal: Consoli-
dated Artists B.V. (Rotterdam, The Netherlands)

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 23 May 2008 in case R 1162/2007-2; and

— Order the defendant to pay the costs.