Case T-484/08: Action brought on 11 November 2008 — Longevity Health Products v OHIM — Merck (Kids Vits)
Date: 2008-11-11
Institutions: Court of First Instance
Subjects: EU trade mark, European Union Intellectual Property Office, action for annulment (EU), dietary product, pharmaceutical product, trade-mark law

C 32/38

EN

Official Journal of the European Union

7.2.2009

Form of order sought

Form of order sought

— Annulment

of

the

defendant's

decision

(reference:

SG.E.3/MV/psi D(2008) 6991) of 2 September 2008.

Pleas in law and main arguments

The applicant has brought an action against the Commission
decision by which that institution refused full and unrestricted
access to documents connected with a TACIS programme and a
TACIS contract to which the applicant was a party. The appli-
cant claims that access to the documents in question is essential
for his defence in the action filed by the Commission against
him, following termination of the TACIS contract, for reimbur-
sement of the monies paid in advance.

In support of his action the applicant claims, first, that general
principles of Community law have been infringed, in particular
the right to sound administration and the right to due process,
because he, as a concerned party, must be given the possibility
to obtain full and unfettered access to documents necessary for
his defence and subsequent vindication of his own claims
against the Commission.

The applicant also claims, secondly, that a right to full and
unfettered access
from Regulation (EC)
No 1049/2001 (1), inasmuch as the Commission erred, in par-
ticular, in the exercise of its discretionary powers under Arti-
cles 4 and 9 of that regulation.

to the files arises

(1) Regulation (EC) No 1049/2001 of the European Parliament and of
the Council of 30 May 2001 regarding public access to European
Parliament, Council and Commission documents (OJ 2001 L 145,
p. 43).

— Annul the decision of the Fourth Board of Appeal of the
Office for Harmonisation in the Internal Market (Trade Marks
and Designs) of 9 September 2008 (Case R 1858/2007-4);
and

— order the defendant to pay the costs.

Pleas in law and main arguments

Registered Community trade mark in respect of which a declaration of
invalidity has been sought: Word mark ‘Atlas Transport’ for trans-
port operations (transport of goods) in Class 39 (Community
trade mark No 545 681).

Proprietor of the Community trade mark: The applicant.

Applicant for the declaration of invalidity: A. Hartmann.

Decision of the Cancellation Division: Dismissal of the application.

Decision of the Board of Appeal: Granting of the application for a
declaration that the registration has lapsed.

Pleas in law: Breach of Article 15 and Rules 22 and 40 of Regu-
lation (EC) No 2868/95 (1), in so far as an incorrect standard
was applied to the proof of use preserving the rights held and
as evidence submitted was incorrectly assessed; breach of the
procedural requirements of the right to a hearing in accordance
with [Rule] 73(2) of Regulation (EC) No 2868/95 and of the
duty to give reasons under [Rule] 73(1) of Regulation (EC)
No 2868/95; incorrect assessment.

(1) Commission Regulation (EC) No 2868/95 of 13 December 1995
implementing Council Regulation (EC) No 40/94 on the Community
trade mark (OJ 1995 L 303, p. 1).

Action brought on 11 November 2008 — Atlas Transport
v OHIM — Hartmann (ATLAS TRANSPORT)

(Case T-482/08)

(2009/C 32/74)

Language in which the application was lodged: German

Action brought on 11 November 2008 — Longevity Health
Products v OHIM — Merck (Kids Vits)

(Case T-484/08)

(2009/C 32/75)

Language in which the application was lodged: German

Parties

Applicant: Atlas Transport GmbH (Düsseldorf, Germany) (repre-
sented by: U. Hildebrandt, K. Schmidt-Hern and B. Weichhaus,
lawyers)

Parties

Applicant: Longevity Health Products,
(represented by: J. Korab, lawyer)

Inc.

(Nassau, Bahamas)

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

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

Other party to the proceedings before the Board of Appeal of OHIM:
Alfred Hartmann (Leer, Germany)

Other party to the proceedings before the Board of Appeal of OHIM:
Merck KGaA (Darmstadt, Germany)

7.2.2009

EN

Official Journal of the European Union

C 32/39

Form of order sought

— Declare the action brought by Longevity Health Products,

Inc. admissible;

— annul

the decision of

the Fourth Board of Appeal of
28 August 2008 and dismiss the nullity proceedings of
Merck KGaA against registration of Community trade mark
003 979 143; and

— Annul the decision of the Appointing Authority of 5 March

2007 not to accept the appellant's complaint;

— Annul the decision of the Director General of the JRC of
4 October 2006, in so far as it reclassifies the appellant in
Grade AST 3, Step 2, whereas he was initially classified in
Grade AST 4, Step 2;

— Confirm the decision of 28 June 2006 which appoints the

— order the Office for Harmonisation in the Internal Market to

appellant in Grade AST 4, Step 2;

pay the costs.

Pleas in law and main arguments

Applicant for a Community trade mark: The applicant.

Community trade mark concerned: Word mark ‘Kids Vits’ for goods
and services in Classes 3, 5 and 35 (Community trade mark
No 3 979 143).

— State to the Appointing Authority the consequences of the
annulment of the contested decisions and, in particular, clas-
sification in Grade AST 4, Step 2, and the retroactive effect
of appointment in Grade AST 4, Step 2, from the date the
post was first taken up;

— Order the respondent to bear the costs.

Proprietor of the mark or sign cited in the opposition proceedings:
Merck KGaA.

Pleas in law and main arguments

Mark or sign cited in opposition: Word mark ‘VIDS4KIDS’ for
goods in Class 5 (mark No 3 128 196).

Decision of the Opposition Division: Upholding of the opposition.

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

Pleas
in law: Breach of Article 8(1)(b) of Regulation (EC)
No 40/94 (1), since there is no likelihood of confusion between
the opposing marks.

(1) Council Regulation (EC) No 40/94 of 20 December 1993 on the

Community trade mark (OJ 1994 L 11, p. 1).

Appeal brought on 17 November 2008 by Philippe Bui
Van against the judgment of the Civil Service Tribunal
delivered on 11 September 2008 in Case F-51/07 Bui Van v
Commission

(Case T-491/08 P)

(2009/C 32/76)

Language of the case: French

Parties

Appellant: Philippe Bui Van (Hettange-Grande, France)
sented by P. Nelissen Grade, lawyer)

(repre-

Other party to the proceedings: Commission of
Communities

the European

Form of order sought by the appellant

— Declare the appeal admissible and well-founded;

— Set aside the judgment of the Civil Service Tribunal of the
European Union (Second Chamber) of 11 September 2008
in Case F-51/07;

By the present appeal, the appellant seeks to have set aside the
judgment of the Civil Service Tribunal (CST) of 11 September
2008 in Case F-51/07 Bui Van v Commission, by which the CST
ordered the respondent
the sum of
EUR 1 500 by way of damages and dismissed, as to the
remainder, the action for annulment of the decision reclassifying
the appellant in Grade AST 3, whereas he had initially been clas-
sified in Grade AST 4.

to pay the appellant

In support of his appeal, the appellant puts forward three pleas
in law.

First, the judgment under appeal ought to be set aside in so far
the Commission
as it considers, while acknowledging that
infringed the appellant's rights of defence, that the fact that the
appellant was not heard did not affect
the
Commission's contested decision.

the validity of

Second, in connection with the appellant's plea at first instance
alleging that there had been a manifest error of assessment and
breach of the principles of
legal certainty and protection of
legitimate expectations,
the CST was wrong to uphold the
administrative decision of 4 October 2006, downgrading the
appellant from Grade AST 4 to Grade AST 3, by holding,
wrongly, that the appellant did not have reason to have legiti-
mate expectations in the act appointing him in Grade AST 4,
on the ground that the appellant should have known, because
of a footnote in the competition notice, that his appointment in
Grade AST 4 was unlawful and that the new Staff Regulations
of Officials of the European Communities — which, according
to the competition notice, were the ones to apply — could be
pleaded against him. The appellant submits that that footnote
could not alter the provisions of the Staff Regulations in force
at the time of the competition notice.

Third, the CST was wrong to dismiss the plea that there was an
infringement of the principle of equal treatment even though
the Appointing Authority, while it downgraded the appellant to
Grade AST 3, responded positively to the complaints brought
by three other officials who were essentially in the same situa-
tion as the appellant.