Case T-16/09 P: Appeal brought on 19 January 2009 by Luigi Marcuccio against the order of the Civil Service Tribunal made on 4 November 2008 in Case F-87/07 Marcuccio v Commission
Date: 2009-01-19
Institutions: Court of First Instance
Subjects: European Commission, action for annulment (EU), appeal, health expenditure, ordinance, physician

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.