CELEX: C2003/184/100
Language: en
Date: 2003-08-02 00:00:00
Title: Case T-188/03: Action brought on 27 May 2003 by Joëlle Hivonnet against Council of the European Union

2.8.2003              EN                           Official Journal of the European Union                                           C 184/45
Mark or sign cited in oppo-      Figurative mark ‘GESINMAR’                Pleas in law and main arguments
sition:                          (mark          with         priority
                                                                           Applicant for Community          The Applicant
                                 no 1975912, for goods in
                                                                           trade mark:
                                 Class 36)
                                                                           Community       trade   mark     The trade name ‘ENZO FUSCO’
Decision of the Opposition       Upholding of the opposition for           sought:                          — Application for registration
Division:                        all services in Class 36                                                   No 726735, requested for pro-
                                                                                                            ducts in Classes 3, 9, 18, 24
                                                                                                            and 25 (products which are tra-
                                                                                                            ditionally the subject of trade
                                                                                                            mark registration by so-called
Decision of the Board of         Dismissal of the appeal                                                    creators of taste and fashion)
Appeal:
                                                                           Proprietor of mark or sign       Antonio Fusco International
                                                                           cited in the opposition pro-     S.A., Luxembourg
Pleas in law:                    Misapplication of Article 8(1)(b)         ceedings:
                                 of Regulation (EC) No 40/94
                                 (likelihood of confusion)
                                                                           Mark or sign cited in op-        Community mark ‘ANTONIO
                                                                           position:                        FUSCO’               (Registration
                                                                                                            No 654059) for products sub-
                                                                                                            stantially identical to those
                                                                                                            claimed by the Applicant
Action brought on 27 May 2003 by Vincenzo Fusco
against the Office for Harmonisation in the Internal
          Market (Trade Marks and Designs) (OHIM)                          Decision of the Opposition       Opposition upheld and applica-
                                                                           Division:                        tion for registration dismissed
                         (Case T-185/03)
                         (2003/C 184/99)                                   Decision of the Board of         Dismissal of the appeal.
                                                                           Appeal:
                   (Language of the case: Italian)
                                                                           Pleas in law:                    Misapplication of Article 8(1)(b)
An action against the Office for Harmonisation in the Internal                                              of Regulation (EC) No 40/94
Market (Trade Marks and Designs) (OHIM) was brought before                                                  (Risk of confusion).
the Court of First Instance of the European Communities on
27 May 2003 by Vincenzo Fusco, represented by B. Saguatti,
lawyers.
The other party to the proceedings before the Board of Appeal
was Antonio Fusco International S.A.                                       Action brought on 27 May 2003 by Joëlle Hivonnet
                                                                                       against Council of the European Union
The applicant claims:
                                                                                                    (Case T-188/03)
—     as a principal claim, that the Court should annul the                                        (2003/C 184/100)
      contested decisions of the Board of Appeal holding that
      the marks Antonio Fusco and Enzo Fusco were liable to                                   (Language of the case: French)
      be confused with each other;
—     in the alternative, should the Court hold that the marks             An action against the Council of the European Union was
      Antonio Fusco and Enzo Fusco are liable to confusion,                brought before the Court of First Instance of the European
      that the Court should specify the precise territorial scope          Communities on 27 May 2003 by Joëlle Hivonnet, domiciled
      of the decision;                                                     in New York (United States), represented by Georges Vander-
—     as a principal claim, a declaration that, although the               sanden and Laure Levi, lawyers.
      opposition is based on an earlier Community trade                    The applicant claims that the Court should:
      mark, the transformation procedure is not precluded save
      by reference to the territory in respect of which the                —     annul the decision of the appointing authority of 23 July
      existence of a risk of confusion may be recognised;                        2002 rejecting the applicant's request for the grant of an
                                                                                 education allowance for her daughter Eponine for the
—     that the opponent should be ordered to pay the costs, or,                  school years 1999-2000 and 2000-2001, and only
      in the alternative, given the delicacy and complexity of                   granting an education allowance for the school year
      the questions under consideration, that a composition of                   2001-2002 on an exceptional basis on the ground of
      costs should be established.                                               educational continuity;
 ---pagebreak--- C 184/46               EN                         Official Journal of the European Union                                           2.8.2003
—     annul the decision of the appointing authority of                   Action brought on 2 June 2003 by ASM Brescia S.p.A.
      17 February 2003, notified on 24 February 2003,                          against Commission of the European Communities
      dismissing the applicant's complaint of 9 October 2002;
                                                                                                   (Case T-189/03)
—     restore all the applicant's pecuniary rights;
                                                                                                  (2003/C 184/101)
—     order the defendant to pay default interest on sums owed
      to the applicant as education allowance for the school
      years 1999-2000 and 2000-2001 and 2001-2002, that                                      (Language of the case: Italian)
      interest to run for the first two school years from 17 June
      2002 until the sums are paid in full; for the school year
      2001-2002 interest to run from 17 June 2002 to
      13 August 2002 for the first and second terms and                   An action against the Commission of the European Commu-
      from 8 March 2002 to 7 May 2002 for the third term.                 nities was brought before the Court of First Instance of the
      The rate of default interest to apply must be calculated on         European Communities on 2 June 2003 by ASM Brescia S.p.
      the basis of the rate set by the European Central Bank for          A., represented by Fausto Capelli, Francesca Vitale and Massi-
      capital refinancing operations in force during the period           miliano Valcada, lawyers.
      concerned, increased by two percentage points;
                                                                          The applicant claims that the Court should:
—     order the defendant to pay one euro as compensation for
      the non-material damage suffered by the applicant;                  —     in substance, annul Article 2 of Commission Decision
                                                                                2003/193/EC of 5 June 2002, published in OJ 2003
                                                                                L 77, by which the European Commission declared
—     order the defendant to pay all the costs.
                                                                                incompatible with the common market the measures
                                                                                adopted by the Italian Republic under Article 2(70) of
                                                                                Law No 549 of 28 December 1995 and Article 66(14) of
                                                                                Decree Law No 331 of 30 August 1993, converted into
                                                                                Law No 427 of 29 October 1993 granting exemption
                                                                                from income tax to joint stock companies with majority
                                                                                public shareholdings set up in accordance with Law
Pleas in law and main arguments                                                 No 142 of 8 June 1990;
                                                                          —     in substance, in the alternative, annul Article 3 of
The applicant's daughter was born in 1996 and began to                          Commission Decision 2003/193/EC of 5 June 2002,
attend the French Lycée in Brussels in September 1999.                          published in OJ 2003 L 11, by which the European
                                                                                Commission ordered the Italian Republic to recover
                                                                                granted to, inter alios, the applicant;
In support of her application the applicant relies, first, on
breach of Article 3 of Annex VII to the Staff Regulations,                —     order the European Commission to pay the costs.
breach of Article 15 of Annex X to the Staff Regulations and
the Council Decision of 19 December 1998 laying down
general implementing provisions in respect of Annex X to the
Staff Regulations. She also complains that the Council took a
decision on grounds that are wrong in fact and law. The
applicant claims that despite the clear terms of the national             Pleas in law and main arguments
rules applicable to schooling and the replies given by the
French Government on those rules, the Council considered
that her daughter's schooling was not primary education.                  The applicant in the present action, the former azienda muni-
                                                                          cipalizzata (municipal undertaking) of Brescia is contesting the
                                                                          decision of the Commission of 5 June 2002 (1), in which it
The applicant further alleges that the principle of non-discri-           considered State aid the three-year exemption (1997 to 1999)
mination was infringed in that children registered at a French            from income tax, provided for by Italian legislation for former
educational establishment are not treated in the same way as              municipal undertakings which became companies with a
children registered in a Luxembourg, British or Dutch educa-              majority public shareholding and accordingly ordered recovery
tional establishment.                                                     of the appropriate amounts.
                                                                          In support of its claims, the applicant alleges the following:
Lastly the applicant alleges that the requirement to state
reasons and the fundamental right to a hearing have been
infringed. The applicant states that the Council did not take             —     in the contested decision, the defendant appears to have
account of the opinion of the French authorities and did not                    conducted its analysis while completely disregarding the
explain why they did not do so.                                                 special nature of the public utilities sector, namely that it
                                                                                ensures public provision of certain minimum services
                                                                                deemed to be of fundamental importance.