Source: EURLEX
Language: en
Format: md

C 47/34 EN Official Journal of the European Union 21.2.2004

Proprietor of mark or Laboratoires Goëmar
sign cited in the opposition proceedings:

Mark or sign cited in The national and international
opposition: word marks ‘Laboratoires de la
mer’ for goods in classes 3, 5,
29 and 31 (in addition to other
things, cosmetics of a marine
products base)

Decision of the Oppo- The opposition was upheld and
sition Division: the application for registration
rejected in its entirety

Decision of the Board of Dismissal of the appeal brought
Appeal: by La Mer Technology

Pleas in law: Violation of Article 43(2) and (3)
of Council regulation 40/94 ( [1] )
and violation of Article 8(1) (b) of
Council Regulation 40/94.

( [1] ) Council Regulation (EC) No 40/94 of 20 December 1993 on the
Community trade mark (OJ 11, p. 1).

**Action brought on 17 December 2003 by El Corte Inglés**
**against the Office for Harmonisation in the Internal**
**Market (Trade Marks and Designs) (OHIM)**

**(Case T-420/03)**

(2004/C 47/66)

_(Language of the case: Spanish)_

An action against the Office for Harmonisation in the Internal
Market (Trade Marks and Designs) was brought before the
Court of First Instance of the European Communities on
17 December 2003 by El Corte Inglés S.A., established in
Madrid, represented by Juan Luis Rivas Zurdo and Emilio
López Leiva, lawyers.

The applicant claims that the Court should:

—
annul the OHIM (Second Board of Appeal)’s decision of
1 October 2003 given in Case R088/2003-2, inasmuch
as, by dismissing the appeal brought by the present
applicant, it gives grounds for a future grant of Community trade mark No 1.160.050 BOOMERANG TV in
Class 41;

—
refuse to allow registration of the Community trade mark
No 1.160.050 ‘BOOMERANG TV’ in Class 41, and

—
order the other party or parties opposing this action to
pay the costs.

_Pleas in law and main arguments_

Applicant for Com- José Matías Abril Sánchez and
munity trade mark: Pedro Ricote Saugar

Community trade mark Figurative mark ‘BOOMERANG
sought: TV’, with a semi-ellipse superim
—
posed Application
No 1.160.050 in respect of services included in Classes 38
and 41, although during the
opposition proceedings the party
applying for registration reduced
the ambit of protection for the
mark, excluding Class 38.

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

Mark or sign cited in Spanish figurative marks Nos
opposition. 2035514, 2163613, 2163616,
2035507, 2035508, 2035505,
2035509, 2035510, 2035511,
2035512 and 2035513 (the word
‘BOOMERANG’ framed in a diamond), 1236024, 1236025 and
1282250, Irish mark No 153228,
Greek mark No 109387 and
Community trade mark
No 448514 (the word ‘BOOMERANG’ under a square containing
the letter B next to a boomerang),
Spanish word mark ‘BOOMERANG’ No 456466, Spanish figurative marks ‘BOOMERANG La
base del deporte’ (No 2227731,
2227732 and 2227734) and
English figurative mark
No 1494568 (small square
enclosing the letter B next to a
boomerang), in respect of products in Classes 18, 25, 38 and 41.

Decision of the Oppo- Opposition rejected.
sition Division:

21.2.2004 EN Official Journal of the European Union C 47/35

Decision of the Board of Action dismissed.
Appeal:

Pleas in law: Infringement of Article 8(1)(b),
(2)(c) and (5) of Regulation (EC)
No 40/94.

**Action brought on 23 December 2003 by Enviro Tech**
**Europe, Ltd., and Enviro Tech International Inc. against**
**the Commission of the European Communities**

**(Case T-422/03)**

(2004/C 47/67)

_(Language of the case: English)_

An action against the Commission of the European Communities was brought before the Court of First Instance of the
European Communities on 23 December 2003 by Enviro Tech
Europe Ltd., Kingston-upon-Thames, United Kingdom and
Enviro tech International, Inc., Chicago, USA, represented by
Mr C. Mereu and Mr K. Van Maldegem, lawyers.

The applicant claims that the Court should:

—
annul Commission Decisions D(2003) 430307 and
D(2003) 430309 of 4 November 2003;

—
declare the Commission liable for damages suffered by
applicants to date and pending these proceedings as a
result of the Commission’s unlawful conduct, including
but not limited to its denial of applicant’s request
and related adoption of the contested decision, and to
compensate applicants for such damage in the provisional
amount of EUR 350 000;

— declare the Commission liable for imminent losses and
damages foreseeable with sufficient certainty, even if such
losses and damages cannot be precisely assessed;

—
order the Commission to pay all costs and expenses in
these proceedings.

_Pleas in law and main arguments_

The applicants seek the annulment of the Commission’s
decisions rejecting the applicants’ request not to classify
n-propyl bromide as a highly flammable substance (risk
phrase R11) and reproductive toxicant category 2 (risk
phrase R60), but instead to classify it as a category 3/R62
substance for reproductive toxicity and R18 substance for
flammability. In the alternative, the applicants requested
the Commission to exclude n-propyl bromide from the
29th Adaptation to Technical Progress of Directive 67/548/
EEC ( [1] ) until a proper and complete assessment of all the
scientific data had been made by the Commission.

In support of their application, the applicants claim that the
Commission has violated the provision of Directive 67/
548/EEC concerning the applicable testing methods and
classification criteria for chemical substances. According to the
applicant, the Commission has made a manifest error of
assessment and an incorrect application of the testing methods
for physico-chemical properties set forth in annex V, point A.9
of Directive 67/548/EEC, the classification criteria for toxicological properties set forth in annex VI, point 4.2.3 of Directive
67/548/EEC and the criterion of normal handling or use set
forth in annex VI, point 1.1 of Directive 67/548/EEC.

The applicants also claim that the Commission has violated
the applicants’ legitimate expectations that the Commission
would assess the data submitted by the applicants in accordance with their obligations under Directive 67/548/EEC,
diligently, impartially and by relevance to the relevant criteria
of Directive 67/548/EEC.

The applicants invoke furthermore a violation of Article 95(3)
EC Treaty. According to the applicants, the Commission failed
to consider and assess all the scientific data available as well as
new developments based on scientific facts.

The applicants state that the contested decisions are based on
the precautionary principle. According to the applicants, this
principle only applies to risk assessment and cannot be used
in hazard assessments. Also, even if the principle should apply
in this case, this would only be possible in the case of scientific
uncertainty.