Case T-11/09: Action brought on 14 January 2009 — Özdemir v OHIM — Aktieselskabet af  21. november 2001 (James Jones)
Date: 2009-01-14
Institutions: Court of First Instance
Subjects: EU trade mark, European Union Intellectual Property Office, action for annulment (EU), infringement of EU law, telecommunications industry, trade-mark law

7.3.2009

EN

Official Journal of the European Union

C 55/47

Pleas in law and main arguments

This appeal
is directed against the order of the Civil Service
Tribunal of 4 November 2008 in Case F-133/06 Marcuccio v
Commission.

In support of the forms of order sought by him, the appellant
raises the following pleas in law:

(a) complete failure to carry out preliminary investigations and
failure to rule on a fundamental aspect of the dispute, in so
far as the order under appeal fails to adjudicate on the appli-
cation for a declaration that there is no legal basis for the
decision contested before the Civil Service Tribunal.

(b) complete failure to state adequate reasons in the order under
appeal as regards the inadmissibility of the requests that ‘the
Commission be ordered to return his personal property to
the applicant’, ‘that the contested decision be annulled’ and
of ‘the application for damages’, as regards the order that
the appellant should pay the costs, and distortion and misre-
presentation of the facts, complete failure to carry out any
preliminary investigations, confusion and irrationality, and
also the erroneous and incorrect interpretation and applica-
tion of the Community legislation and case-law.

(c) a procedural error,

in that no account was taken of the
requirement not to have regard to the arguments contained
in the defence in so far as made out of time by the respon-
dent, in a manner which was prejudicial to the interests of
the appellant.

(d) infringement of the rules relating to a fair hearing.

Action brought on 14 January 2009 — Formula One
Licensing v OHIM — Racing — Live (F1 — Live)

(Case T-10/09)

(2009/C 55/84)

Language in which the application was lodged: English

Parties

Applicant:
The Netherlands) (represented by: B. Klingberg, lawyer)

Formula One

Licensing

BV

(Amsterdam,

— Order the other party to the proceedings before the Board
of Appeal to pay the costs of the proceedings before the
defendant.

Pleas in law and main arguments

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

Community trade mark concerned: The figurative mark ‘F1 — Live’,
for goods and services in classes 16, 38 and 41

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

or

sign cited:

International

trade mark registration
Mark
No 732 134 of the word mark ‘F1’ for goods and services in
classes 16, 38 and 41; German trade mark registration
No 30 007 412 of the word mark ‘F1’ for services in class 41;
United Kingdom trade mark registration No 2 277 746 D of
the word mark ‘F1’ for goods and services in classes 16 and 38;
Community trade mark registration No 631 531 of the figura-
tive mark ‘F1 Formula 1’ for goods and services in classes 16,
38 and 41; other marks such as ‘F1 Racing Simulation’, ‘F1 Pole
Position’ and ‘F1 Pit Stop Café’

Decision of the Opposition Division: Rejected the Community trade
mark application

Decision of the Board of Appeal: Annulled the contested decision,
rejected the opposition and allowed the Community trade mark
application to proceed

Pleas in law: Infringement of Article 8(1)(b) of Council Regu-
lation 40/94 as the Board of Appeal wrongly assessed that there
was no likelihood of confusion between the trade marks
concerned; infringement of Article 8(5) of Council Regulation
40/94 as the Board of Appeal failed to find that use of the
Community trade mark concerned would without due cause
take unfair advantage of, and be detrimental to, the distinctive
character or the repute of the applicant's earlier trade marks.

Action brought on 14 January 2009 — Özdemir v OHIM
— Aktieselskabet af 21. november 2001 (James Jones)

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

Other party to the proceedings before the Board of Appeal: Racing —
Live SA (Montpellier, France)

(Case T-11/09)

(2009/C 55/85)

Language in which the application was lodged: English

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 16 October 2008 in case R 7/2008-1;

— Order the defendant to pay the costs of proceedings; and

Parties

Applicant: Rahmi Özdemir (Dreieich, Germany) (represented by:
M. Heinrich, I. Hoes, C. Schröder, K. von Werder and J. Witten-
berg, lawyers)

C 55/48

EN

Official Journal of the European Union

7.3.2009

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

Appeal brought on 19 January 2009 by Luigi Marcuccio
against the order of the Civil Service Tribunal made on
F-87/07 Marcuccio v
4 November 2008 in Case

Other party
Aktieselskabet af 21. november 2001 (Brande, Denmark)

to the proceedings before

the Board of Appeal:

Commission

(Case T-16/09 P)

(2009/C 55/86)

Form of order sought

Language of the case: Italian

— Annul the decision of the Second Board of Appeal of the
Office
Internal Market
(Trade Marks and Designs) of 3 November 2008 in case
R 858/2007-2;

for Harmonisation

the

in

— Dismiss the opposition of the other party to the proceedings
before the Board of Appeal of 25 January 2005 against the
application for registration of the Community trade mark —
application No 3 493 137; and

Parties

Appellant: Luigi Marcuccio (Tricase,
Cipressa, lawyer)

Italy)

(represented by G.

Other party to the proceedings: Commission of
Communities

the European

— Order the other party to the proceedings before the Board
of Appeal to pay the costs of the proceedings, including the
costs incurred in the course of the opposition proceedings.

Form of order sought by the appellant

— In any event:

Pleas in law and main arguments

Applicant for the Community trade mark: The applicant

A.1 A decision setting aside the order under appeal, in its

entirety and without exception.

A.2 A declaration that
perfectly admissible.

— The principal claim:

the action at

first

instance was

Community trade mark concerned: The word mark ‘James Jones’,
for goods in class 25

B.1 The granting in toto and without exception of

the

appellant's claims at first instance;

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

B.2 an order that the respondent should pay in favour of
the appellant all costs, fees and expenses incurred by
him both at first instance and on appeal;

or

sign cited: Community

Mark
trade mark registration
No 1 107 747 of the word mark ‘Jack & Jones’ for goods in
classes 3, 18 and 25; United Kingdom trade mark registration
No 2 063 437 of the word mark ‘Jack Jones’ for goods in
class 25; Benelux trade mark registration No 474 622 of the
word mark ‘Jack Jones’ for goods in class 25; Denmark trade
mark registration No VR 1990 06569 of
the word mark
‘Jack & Jones’ for goods in class 25

Decision of the Opposition Division: Upheld the opposition for all
the contested goods

Decision of the Board of Appeal: Dismissed the appeal

Pleas in law: Infringement of Article 8(1)(b) of Council Regu-
lation 40/94 as the Board of Appeal wrongly assessed that there
was a likelihood of confusion between the trade marks
concerned; infringement of Article 43(2) of Council Regulation
40/94 as there has been no proof of use submitted before the
Board of Appeal for United Kingdom trade mark registration
No 2 063 437.

— or

B.3 refer the case back to the Civil Service Tribunal, sitting
in a different formation, so that it may give a fresh deci-
sion on the merits of the case.

Pleas in law and main arguments

The decision under appeal in this case is the order made by the
Civil Service Tribunal on 4 November 2008 in Case T-87/07
Marcuccio v Commission.

The pleas in law and main arguments are similar to those put
forward in Case T-9/09 Marcuccio v Commission.

that

The appellant claims,
the Civil Service
in particular,
Tribunal did not rule on a fundamental aspect of the dispute,
that is to say, authorisation to produce a note signed by a
doctor. He also alleges that the order lacks any reasoning and is
illogical in respect of the alleged inadmissibility of the claim for
damages, of the claim that the Tribunal should make a declara-
tion establishing the reality of
the actions and conduct
complained of and, at least incidentally, declare them unlawful,
and of the action at first instance as a whole.