CELEX: C2003/135/57
Language: en
Date: 2003-06-07 00:00:00
Title: Case T-115/03: Action brought on 7 April 2003 by Samar SpA against the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM)

7.6.2003               EN                         Official Journal of the European Union                                         C 135/35
                               —    Violation of the principle of         The applicant claims that the Court should:
                                    continuity between the
                                    Opposition Division and the           —     annul the decisions of 30 April 2002 of the Director
                                    Board of Appeal in that the                 of the ‘Administration and Personnel Management for
                                    Board of Appeal refused to                  Luxembourg and Ispra’ Directorate in DG ADMIN refus-
                                    examine the applicant’s                     ing the applicant the installation allowance and daily
                                    request for proof of use.                   subsistence allowance during his secondment to Athens,
                                                                                and the installation allowance upon his return to Luxem-
                               —    Breach of Article 8(1) of
                                                                                bourg, and that limiting the transferable part of his salary
                                    Council Regulation 40/94 in
                                                                                to 35 % of his net emoluments from his place of
                                    that there is no likelihood of
                                                                                secondment to his place of work and habitual residence;
                                    confusion.
                               —    Breach of Article 8(2) (a) (ii)       —     order the defendant to pay the costs.
                                    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          Pleas in law and main arguments
                                    the Community trade mark
                                    application      under     the
                                    national legislation.                 The applicant, who was stationed in Luxembourg, was second-
                                                                          ed 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
( 1) Council Regulation (EC) No 40/94 of 20 December 1993 on the          allowance and limited the part of his salary he was allowed to
     Community trade mark (OJ 11, p. 1).                                  transfer to Luxembourg to 35 %.
( 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).
                                                                          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 31 March 2003 by Georgios Gouvras
     against Commission of the European Communities
                                                                          Action brought on 7 April 2003 by Samar SpA against
                          (Case T-113/03)                                 the Office for Harmonisation in the Internal Market
                                                                                        (Trade Marks and Designs) (OHIM)
                         (2003/C 135/56)
                                                                                                   (Case T-115/03)
                   (Language of the case: French)                                                  (2003/C 135/57)
                                                                                             (Language of the case: Italian)
An action against the Commission of the European Communi-
ties was brought before the Court of First Instance of the                An action against the Office for Harmonisation in the Internal
European Communities on 31 March 2003 by Georgios                         Market (Trade Marks and Designs) (OHIM) was brought before
Gouvras, resident in Bereldange, Luxembourg, represented by               the Court of First Instance of the European Communities on
Albert Coolen, Jean-Noël Louis, Etienne Marchal and Sébastien             7 April 2003 by Samar SpA, represented by Alessandro Ruo,
Orlandi, lawyers, with an address for service in Luxembourg.              lawyer.
 ---pagebreak--- C 135/36               EN                           Official Journal of the European Union                                         7.6.2003
The other party in the proceedings before the Board of Appeal               Action brought on 7 April 2003 by Oreste Montalto
was Grotto spa.                                                                       against the Council of the European Union
The applicant claims that the Court should:                                                         (Case T-116/03)
—     annul the contested decision which forms the subject-
                                                                                                    (2003/C 135/58)
      matter of these proceedings; in the alternative, declare
      there is no likelihood of confusion between the signs in
      question so far as concerns all the goods requested except
      for jeans, in respect of which there is a likelihood of                                  (Language of the case: French)
      confusion or, at least, so far as concerns all those goods
      which the Court does not consider likely to be confused
      and, accordingly annul the contested decision so far as
      such goods are concerned;
                                                                            An action against the Council of the European Union was
—     order the defendant to pay the costs.                                 brought before the Court of First Instance of the European
                                                                            Communities on 7 April 2003 by Oreste Montalto, resident
                                                                            in Alicante (Spain), represented by Georges Vandersanden,
                                                                            avocat.
Pleas in law and main arguments
                                                                            The applicant claims that the Court should:
Applicant for Com-             The applicant
munity trade mark:                                                          —     annul the decision of the Council, taken by its President
                                                                                  on 23 May 2002, appointing an additional Chairman of
Community trade mark           Word mark ‘GAS STATION’ —                          a Board of Appeal, also President of the Appeals Depart-
sought:                        application No 712647, regis-                      ment of the OHIM, and thereby rejecting the applicant’s
                               tration sought in respect of goods                 candidature for the same post;
                               in Class 25 (‘Clothing, footwear,
                               headgear’)
                                                                            —     award the applicant compensation for the material and
                                                                                  non-material loss suffered, provisionally assessed at
Proprietor of mark or          Grotto S.p.A.                                      EUR 20 000;
sign cited in the oppo-
sition proceedings:
                                                                            —     order the defendant to pay the costs.
Mark or sign cited in          Italian trade mark ‘BLUE JEANS
opposition:                    GAS’ registered in respect of
                               goods in Class 25 (‘trousers, jack-
                               ets, jeans, shirts, skirts, heavy jack-
                               ets, sports jerseys, sweaters, tail-
                                                                            Pleas in law and main arguments
                               ored jackets, stockings, socks,
                               footwear, boots, slippers’)
Decision of the Oppo-          Registration refused                         The applicant is an official of the Office for Harmonisation in
sition Division:                                                            the Internal Market (OHIM). In response to a vacancy notice,
                                                                            he submitted his candidature for the post of Chairman of a
Decision of the Board of       Appeal dismissed                             Board of Appeal of the OHIM. Another candidate was
Appeal:                                                                     appointed to that post by the contested decision and the
                                                                            applicant’s candidature was accordingly rejected. In support of
                                                                            his claims, the applicant makes two pleas in law. The first plea
Pleas in law:                  Misapplication of Article 8(1)(b)            alleges infringement of the selection procedure. In that respect,
                               of Regulation (EC) No 40/94 inas-            the applicant argues that the selection procedure was entrusted
                               much as the trade marks in ques-             to a private company and that both the competent authorities
                               tion are not to be considered                within the OHIM and the defendant had in reality abdicated
                               similar for the purposes of that             their power of supervision by simply ratifying the conclusions
                               provision                                    to which that company came. He also argues that the contested
                                                                            decision should have been taken by the President of the OHIM
                                                                            and not by the defendant. The second plea alleges manifest
                                                                            errors of assessment and an infringement of the principle of