Case T-435/08: Action brought on 3 October 2008 — Tokita Management Service v OHIM — Eminent Food (TOMATOBERRY)
Date: 2008-10-03
Institutions: Court of First Instance
Subjects: EU trade mark, European Union Intellectual Property Office, action for annulment (EU), pip fruit, trade-mark law

C 313/48

EN

Official Journal of the European Union

6.12.2008

Action brought on 3 October 2008 — Tokita Management
Service v OHIM — Eminent Food (TOMATOBERRY)

Division's finding that the opposition must be upheld on the
ground of Article 8(1)(a) of Council Regulation No 40/94 was
correct.

(Case T-435/08)

(2008/C 313/86)

Language in which the application was lodged: English

Action brought on 6 October 2008 — CDC Hydrogene
Peroxide v Commission

Parties

Applicant: Tokita Management Service Corp.
Japan)
(represented by: P. Brownlow and N. Jenkins, Solicitors and A.
Bryson, Barrister)

(Saitama,

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

Other party to the proceedings before the Board of Appeal: Eminent
Food BV (Bussum, Netherlands)

Parties

(Case T-437/08)

(2008/C 313/87)

Language of the case: German

Form of order sought

Applicant: CDC Hydrogene Peroxide Cartel Damage Claims (CDC
Hydrogene Peroxide) (represented by: R. Wirtz, lawyer)

— Annul the decision of the Fourth Board of Appeal of the
Office for Harmonisation in the Internal Market (Trade Marks
and Designs) of 18 July 2008 in case R 1219/2007-4; and

Defendant: Commission of the European Communities

— Order OHIM to pay the costs.

Pleas in law and main arguments

Applicant for the Community trade mark: The applicant

Community trade mark concerned: The word mark ‘TOMATO-
BERRY’ for goods in class 31 — application No 3 797 909

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

or

sign cited: Community

Mark
trade mark registration
No 3 344 711 of the figurative mark ‘Tomberry’ for goods and
services in classes 31, 35 and 44

Decision of the Opposition Division: Upheld the opposition in its
entirety

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
the trade marks concerned are highly similar visually and
conceptually; infringement of Article 8(1)(a) and/or Article 73
and/or Article 74(1) of Council Regulation No 40/94 as the
Board of Appeal erred in its conclusion that the Opposition

Form of order sought

— declare that decision SG.E3/MM/psi D(2008) 6658 of the
to
Commission of 8 August 2008 is void pursuant
Article 231(1) EC;

— order the defendant to pay the applicant's necessary costs
under Article 87(2) of the Rules of Procedure of the Court
of First Instance.

Pleas in law and main arguments

The applicant, which brings actions for compensation of under-
takings injured by the European hydrogen peroxide cartel, chal-
lenges the decision of the Commission of 8 August 2008, by
which its application on the basis of Article 2(1) of Regulation
(EC) No 1049/2001 (1)
for full access to the statement of
contents of the case-file in Case COMP/F/38.620 — Hydrogen
peroxide and perborate was refused.

In support of its claims the applicant complains of the infringe-
ment of the first and third indent of Article 4(2) of Regulation
(EC) No 1049/2001, as the exceptions contained in those provi-
sions were misinterpreted or misapplied.

The applicant relies on four pleas in law in that regard.