Case T-364/08: Action brought on 29 August 2008 — 2nine v OHIM — Pacific Sunwear of California (nollie)
Date: 2008-08-29
Institutions: Court of First Instance
Subjects: EU trade mark, European Union Intellectual Property Office, action for annulment (EU), clothing, cosmetic product, jewellery and goldsmith's articles, product designation

25.10.2008

EN

Official Journal of the European Union

C 272/47

Pleas in law and main arguments

Pleas in law and main arguments

This dispute concerns a group of projects for the improvement
of existing and newly-constructed pumping stations, the expan-
sion, conditioning and improvement of the drainage network
and cleaning, situated in various parts of Galicia. The Com-
munity co-financing initially granted by the Commission
amounted to 80 % of the public cost eligible for subsidy.

In July 2007, the Commission sent a letter to the applicant
suggesting corrections to remedy the irregularities that came to
light during an earlier audit. The conclusions of the letter speci-
fied the two irregularities which together provided the reason
for the contested decision and the corresponding proposals for
financial corrections: the incorrect use of the emergency proce-
dure in relation to a procurement contract and the wrong use
of experience as an award criterion for various contracts. The
proposals for financial correction amount to EUR 697 901 and
EUR 354 591 respectively.

Applicant for the Community trade mark: The other party to the
proceedings before the Board of Appeal

Community trade mark concerned: The figurative mark ‘nollie’ for
goods and services in classes 3, 9, 11, 14, 18, 20, 25 and 26 —
application No 4 602 017

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

or

sign cited:

International

Mark
trade mark registration
No 839 740 of the word mark ‘NOLI’ for goods in classes 3,
18, 24 and 25; United Kingdom trade mark registration
No 2 361 525 of the word mark ‘NOLI’ for goods in classes 3,
18, 24 and 25.

The pleas in law and main arguments are those put forward in
Case T-359/08 Spain v Commission.

Decision of the Opposition Division: Allowed the opposition and
rejected the application in its entirety

Decision of
contested decision

the Board of Appeal: Partial annulment of

the

Action brought on 29 August 2008 — 2nine v OHIM —
Pacific Sunwear of California (nollie)

(Case T-363/08)

(2008/C 272/91)

Language in which the application was lodged: English

Parties

Applicant: 2nine Ltd (London, United Kingdom) (represented by:
S. Palmer, Solicitor)

Pleas in law: Infringement of Article 8(1)(b) of Council Regu-
lation No 40/94 as the Board of Appeal failed to find that there
is a likelihood of confusion between the conflicting trade marks
infringement of
with respect
Article 74(1) of Council Regulation No 40/94 as the Board of
Appeal failed or neglected to take into account properly the
facts, evidence and arguments submitted.

the contested goods;

to all

Action brought on 29 August 2008 — 2nine v OHIM —
Pacific Sunwear of California (nollie)

(Case T-364/08)

(2008/C 272/92)

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

Language in which the application was lodged: English

Other party to the proceedings before the Board of Appeal: Pacific
Sunwear of California, Inc. (Anaheim, United States)

Parties

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 16 June 2008 in case R 1590/2007-2;

— Order the defendant to pay the costs; and

Applicant: 2nine Ltd (London, United Kingdom) (represented by:
S. Palmer, Solicitor)

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

— Take any further action as the Court may deem appropriate.

Other party to the proceedings before the Board of Appeal: Pacific
Sunwear of California, Inc. (Anaheim, United States)

C 272/48

EN

Official Journal of the European Union

25.10.2008

Form of order sought

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

— Annul the decision of the Second Board of Appeal of the
Office for Harmonisation in the Internal Market (Trade Marks
and Designs) of 16 June 2008 in case R 1591/2007-2;

— Order the defendant to pay the costs; and

— Take any further action as the Court may deem appropriate.

Other party to the proceedings before the Board of Appeal of OHIM:
Bodegas Hidalgo — La Gitana, SA (Sanlucar de Barrameda,
Cadiz, Spain)

Pleas in law and main arguments

Form of order sought

Applicant for the Community trade mark: The other party to the
proceedings before the Board of Appeal

Community trade mark concerned: The figurative mark ‘nollie’ for
goods and services in classes 3, 9, 11, 14, 18, 20, 25 and 26 —
application No 4 601 621

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

— Annul the decision of the Fourth Board of Appeal of OHIM,
of 11 June 2008, in Case R 1329/2007-4, notified to the
applicant on 18 June 2008;

— Order the defendant and, where appropriate, the intervening
party, to pay the costs of the proceedings before the Court
of First Instance and those of the proceedings before the
Board of Appeal.

or

sign cited:

International

Mark
trade mark registration
No 839 740 of the word mark ‘NOLI’ for goods in classes 3,
18, 24 and 25; United Kingdom trade mark registration
No 2 361 525 of the word mark ‘NOLI’ for goods in classes 3,
18, 24 and 25.

Decision of the Opposition Division: Allowed the opposition and
rejected the application in its entirety

Decision of
contested decision

the Board of Appeal: Partial annulment of

the

Pleas in law: Infringement of Article 8(1)(b) of Council Regu-
lation No 40/94 as the Board of Appeal failed to find that there
is a likelihood of confusion between the conflicting trade marks
with respect
infringement of
Article 74(1) of Council Regulation No 40/94 as the Board of
Appeal failed or neglected to take into account properly the
facts, evidence and arguments submitted.

the contested goods;

to all

Action brought on 28 August 2008 — Hidalgo v OHIM —
Bodegas Hidalgo — La Gitana (HIDALGO)

(Case T-365/08)

(2008/C 272/93)

Language in which the application was lodged: Spanish

Parties

Applicant: Emilio Hidalgo, SA (Jerez de la Frontera, Spain) (repre-
sented by: Esteve Sanz, lawyer)

Pleas in law and main arguments

Applicant for a Community trade mark: Emilio Hidalgo, SA.

Community trade mark concerned: Verbal mark ‘HIDALGO’ (Appli-
cation No 4.032.108) for goods in Class 33 ‘alcoholic beverages
(except beers)’.

Proprietor of the mark or sign cited in the opposition proceedings:
Bodegas Hidalgo — La Gitana, SA.

Mark or sign cited in opposition: Spanish verbal mark ‘HIDALGO’
for goods in Class 33 (‘Wines in general and especially those
covered by the DDOO Jerez and Manzanilla’).

Decision of the Opposition Division: Opposition upheld and appli-
cation for registration rejected.

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

Pleas in law: Infringement of Articles 73 and 61(2) of Regulation
(EC) No 40/94 on the Community trade mark (CTM) and the
applicant's rights of the defence, by basing the contested deci-
sion on a document on which the applicant was unable to
comment.

The applicant also alleges breach of:

— Article 8(1)(a) of the CTM, in so far as the contested deci-
sion considers that wines are identical to other alcoholic
beverages in Class 33, other than wines.

— Articles 4(1) and 5(1) of Directive EC/89/104 to approxi-
mate the laws of the Member States relating to trade marks
and infringement of the principle of coexistence and equiva-
lence between national and Community marks.