Source: EURLEX
Language: en
Format: md

C 135/34 EN Official Journal of the European Union 7.6.2003

_Pleas in law and main arguments_

In 1999 the World Trade Organisation found that the EC
regime for the importation of bananas, as amended by Council
Regulation No 1637/98( [1] ) and Commission Regulation
No 2362/98 ( [2] ), was WTO-incompatible. Followingthat ruling,
the United States, with WTO authorisation, adopted certain
retaliatory measures against EC products. These measures
included a 100 % duty on bath preparations imported to the
US from the EC. The first applicant is a Scottish company
which produces, amongst other things, bath products, a large
proportion of which it used to export to the United States. The
other two applicants are officers of that company. The
applicants allege that as a result of the retaliatory measures,
the first applicant’s sales to the US decreased substantially
causing it to suffer serious material losses and subjecting the
other two applicants to stress and anxiety which caused them
non-material damage. The applicants claim compensation
under Articles 235 and 288 EC. In support of their application
they submit that, by adopting Regulation 2362/98, the
defendant violated the fundamental policy of the Community
to make the ‘banana regime’ WTO compatible as well as a
clear mandate from the European Council to that effect.
Moreover, Regulation 2362/98 allegedly violates the freedom
to pursue a trade or business, the principle of proportionality,
the principle of non-discrimination and finally the principle of
good faith in international law and the legitimate expectations
traders can derive from that. According to the applicants the
breach of law is manifest and serious and the rules of law
violated qualify as rules for the protection of the individual.
Further, there exists a causal link between the unlawfulness of
Regulation 2362/98 and the damage allegedly suffered by the
applicants, entitling the latter to compensation.

( [1] ) OJ L 210, 28.7.1998, p. 28.
( [2] ) OJ L 293, 31.10.1998, p. 32.

**Action brought on 27 March 2003 by L’Oréal S.A. against**
**the Office for Harmonisation in the Internal Market**
**(Trade Marks and Designs) (OHIM)**

**(Case T-112/03)**

(2003/C 135/55)

_(Language of the case to be determined pursuant to Article 131(2)_
_of the Rules of Procedure — language in which the application was_
_submitted: English)_

An action against the Office for Harmonisation in the Internal
Market (Trade Marks and Designs) (OHIM) was brought before

the Court of First Instance of the European Communities on
27 March 2003 by L’Oréal S.A., Paris, France, represented by
Mr X. Buffet Delmas d’Autane, lawyer.

A further party to the proceedings before the Board of Appeal
was Revlon (Suisse) S.A.

The applicant claims that the Court should:

—
annul the decision of the Fourth Board of Appeal of
the OHIM of 15 January 2003 regarding the appeal
No R0396/2001-4 relating to the opposition proceedings
No B 215048 (Community application No 1011576);

—
order that the costs of the action and the appeal are to be
borne by the OHIM.

_Pleas in law and main arguments_

Applicant for the Com- L’Oréal S.A.
munity trade mark:

Community trade mark The word mark ‘FLEXI AIR’ for
sought: certain goods in class 3 (Shampoos; gels, mousses and balms;
essential oils; ...) (Application
No 1011576)

Proprietor of mark or Revlon (Suisse) S.A.
sign cited in the opposition proceedings:

Mark or sign cited in Several national word marks
opposition: ‘FLEX’ for certain goods in class 3
and 34 (soaps, essential oils,
Shampoo, ...)

Decision of the Oppo- Rejection of the community trade
sition Division: mark application.

Decision of the Board of Dismissal of the appeal brought
Appeal: by L’Oréal S.A.

Pleas in law: — Breach of article 43(2) of
Council regulation No 40/
94( [1] ) and rule 22(1) Commission Regulation
No 2868/95( [2] ) in that there
is, according to the applicant, no time limit for the
applicant to request evidence
of use.

7.6.2003 EN Official Journal of the European Union C 135/35

—
Violation of the principle of
continuity between the
Opposition Division and the
Board of Appeal in that the
Board of Appeal refused to
examine the applicant’s
request for proof of use.

—
Breach of Article 8(1) of
Council Regulation 40/94 in
that there is no likelihood of
confusion.

—
Breach of Article 8(2) (a) (ii)
of Council Regulation 40/94
in that the Board of Appeal
failed to assess whether the
national trade mark could
validly be invoked to oppose
the Community trade mark
application under the
national legislation.

( [1] ) Council Regulation (EC) No 40/94 of 20 December 1993 on the
Community trade mark (OJ 11, p. 1).
( [2] ) Commission Regulation (EC) No 2868/95 of 13 December
1995 implementing Council Regulation (EC) No 40/94 on the
Community trade mark (OJ L 303, p. 1).

**Action brought on 31 March 2003 by Georgios Gouvras**
**against Commission of the European Communities**

**(Case T-113/03)**

(2003/C 135/56)

_(Language of the case: French)_

An action against the Commission of the European Communities was brought before the Court of First Instance of the
European Communities on 31 March 2003 by Georgios
Gouvras, resident in Bereldange, Luxembourg, represented by
Albert Coolen, Jean-Noël Louis, Etienne Marchal and Sébastien
Orlandi, lawyers, with an address for service in Luxembourg.

The applicant claims that the Court should:

—
annul the decisions of 30 April 2002 of the Director
of the ‘Administration and Personnel Management for
Luxembourg and Ispra’ Directorate in DG ADMIN refusing the applicant the installation allowance and daily
subsistence allowance during his secondment to Athens,
and the installation allowance upon his return to Luxembourg, and that limiting the transferable part of his salary
to 35 % of his net emoluments from his place of
secondment to his place of work and habitual residence;

—
order the defendant to pay the costs.

_Pleas in law and main arguments_

The applicant, who was stationed in Luxembourg, was seconded in the interests of the service to the Greek Ministry of
Health in Athens. By its contested decisions, the defendant
refused him the installation allowance and daily subsistence
allowance and limited the part of his salary he was allowed to
transfer to Luxembourg to 35 %.

With regard to the refusal of the installation allowance and the
daily subsistence allowance, the applicant claims infringement
of Articles 5 and 10 of Annex VII to the Staff Regulations in
support of his arguments. With regard to the 35 % cap on the
amount of his salary that he was allowed to transfer to
Luxembourg, he claims infringement of Article 38(d) of the
Staff Regulations and of Article 17 of Annex VII to the Staff
Regulations.

**Action brought on 7 April 2003 by Samar SpA against**
**the Office for Harmonisation in the Internal Market**
**(Trade Marks and Designs) (OHIM)**

**(Case T-115/03)**

(2003/C 135/57)

_(Language of the case: Italian)_

An action against the Office for Harmonisation in the Internal
Market (Trade Marks and Designs) (OHIM) was brought before
the Court of First Instance of the European Communities on
7 April 2003 by Samar SpA, represented by Alessandro Ruo,
lawyer.