Case T-311/08: Action brought on 5 August 2008 — Fitoussi v OHIM — Loriot (IBIZA REPUBLIC)
Date: 2008-08-05
Institutions: Court of First Instance
Subjects: EU trade mark, European Union Intellectual Property Office, action for annulment (EU), clothing, provision of services

C 272/32

EN

Official Journal of the European Union

25.10.2008

Pleas in law and main arguments

Action brought on 5 August 2008 — Fitoussi v OHIM —
Loriot (IBIZA REPUBLIC)

The Italian Government challenges before the Court of First
Instance of the European Communities Article 1 of Commission
Regulation (EC) No 530/2008 of 12 June 2008, published in
Official Journal L 155 of 13 June 2008, which establishes emer-
gency measures as regards fishing for bluefin tuna by purse
seiners in the Atlantic Ocean, east of longitude 48° W, and in
the Mediterranean Sea.

(Case T-311/08)

(2008/C 272/59)

Language in which the application was lodged: French

The challenge is based on five grounds:

Parties

By its first ground,
the applicant submits that no adequate
reasons whatsoever are given for the contested regulation, in so
far as the statement that fishing opportunities for the Italian
fleet would be exhausted on 16 June 2008 is not supported any
argument other than a simple reference to a number of unspeci-
fied data in the Commission's possession and to the content
(equally unknown) of reports by its own inspectors.

the Commission adopted the

By its second ground, the applicant alleges misuse of power,
emergency
contending that
measure provided for in Article 7 of Council Regulation (EC)
No 2371/2002, not because the conditions set out in that
provision were satisfied but for the different purpose of taking
action in relation to an alleged failure on the part of
the
its obligations under
Member State to fulfil a number of
Council Regulation (EC) No 1559/2007.

The third ground alleges infringement of Articles 7 and 26 of
Regulation No 2371/2002 in so far as, according to the appli-
the facts as alleged by the Commission would have
cant,
permitted, at most, measures
to
Article 26 of that regulation (in compliance with the procedure
laid down in that provision) but not Article 7.

to be adopted pursuant

By its fourth ground, the applicant submits that the contested
measure is vitiated on account of a distortion of the facts in that
it is apparent from information forwarded by the Italian autho-
rities to the Commission that, even after the date on which the
contested regulation was adopted, the quantity of bluefin tuna
fished by vessels flying the Italian flag was less than 50 % of the
quota allocated, so that the alleged factual circumstances on
which the disputed measure is based (the fishing opportunities
for the Italian fishing fleet had been exhausted) have no basis.

By its fifth and final ground, the applicant complains of failure
to state the reasons for the alleged infringements of Regulation
No 1559/2007, which are also stated to have occurred in
general terms in the contested measure, without any indication
being given as to the precise nature of those infringements or
any evidence on the basis of which it is claimed that the appli-
cant Member State failed to fulfil its obligations under that regu-
lation.

Applicant: Paul Fitoussi (Vincennes, France) (represented by: K.
Manhaeve, T. van Innis and G. Glas, 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:
Bernadette Nicole J. Loriot (Ibiza, Spain)

Form of order sought

— Annul the decision of the Second Board of Appeal of the
Office for Harmonisation in the Internal Market of 7 May
2008 in Case R 1135/2007-2;

— order OHIM to pay the costs.

Pleas in law and main arguments

Applicant for a Community trade mark: Bernadette Nicole J. Loriot

trade mark

‘IBIZA
concerned:
Community
REPUBLIC’ for goods in Classes 25, 41 and 43 — application
No 3 868 072

Figurative mark

Proprietor of the mark or sign cited in the opposition proceedings: The
applicant

Mark or sign cited in opposition: National figurative mark in the
form of a five-pointed star surrounded by a circle, for goods in
Class 25

Decision of the Opposition Division: Dismissal of the opposition

Decision of the Board of Appeal: Dismissal of the appeal

Pleas in law: Breach of Article 8(1)(b) of Council Regulation
No 40/94 in as much as i) the earlier mark consists of a repre-
sentation of a five-pointed star surrounded by a circle and not
only a star; ii) the earlier mark is an intrinsically strong mark
and not a mark with little distinctive character; and iii) the
graphic element of
the earlier mark dominates the word
element and not vice versa.