CELEX: C2003/101/67
Language: en
Date: 2003-04-26 00:00:00
Title: Case T-32/03: Action brought on 3 February 2003 by Leder & Schuh AG against the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM)

C 101/36                 EN                          Official Journal of the European Union                                         26.4.2003
22 September 1999, the Opposition Division held the oppo-                    Action brought on 3 February 2003 by Leder & Schuh
sition to be justified and dismissed the application for certain             AG against the Office for Harmonisation in the Internal
goods of class 30.                                                                    Market (Trade Marks and Designs) (OHIM)
                                                                                                       (Case T-32/03)
The applicant argued that it was only in the context of an
enquiry with the Office that it learned that opposition to the                                        (2003/C 101/67)
mark had been raised as early as 1998, and that up to that
point it had received no notification that an opposition had
been lodged.                                                                 (Language of the case: to be determined pursuant to Article 131(2)
                                                                             of the Rules of Procedure — Language in which the application was
                                                                                                     submitted: German)
In June 2000, the applicant made an application for restitutio
in integrum in accordance with Article 78 of Regulation (EC)
No 40/94, an application for inspection of the files and an                  An action against the Office for Harmonisation in the Internal
application for costs. The Opposition Division dismissed the                 Market (Trade Marks and Designs) (OHIM) was brought before
application for restitutio in integrum by decision of 25 October             the Court of First Instance of the European Communities on
2000. By the contested decision, the Board of Appeal dismissed               3 February 2003 by Leder & Schuh AG, Graz (Austria),
the applicant’s appeal.                                                      represented by W. Kellenter and A. Schaffge, lawyers.
                                                                             Schuhpark Fascies GmbH, Warendorf (Germany), was also a
                                                                             party to the proceedings before the Board of Appeal.
The applicant argues that the contested decision infringed
                                                                             The applicant claims that the Court should:
essential procedural requirements, the Treaty and Regulation
(EC) No 40/94. It argues that it was deprived of the possibility
of defending its right to a fair hearing, as it was unable to                —     annul the decision of the Third Board of Appeal of the
contact the opposing party during the ‘cooling-off’ period in                      Office for Harmonisation in the Internal Market (Trade
order to make a settlement, and it was not possible for it either                  Marks and Designs) of 27 November 2002, in the
to submit its reaction to the opposition or to lodge an appeal                     amended version of 9 December 2002, in Case R 494/
within the time-limits against the decision of the Opposition                      1999-3;
Division. Accordingly, despite using all the care required in the
circumstances, the applicant was prevented from complying                    —     order the defendant to pay the costs.
with Office’s time-limits and is therefore, it submits, entitled to
restitutio in integrum.
                                                                             Pleas in law and main arguments
The legal argument of the Board of Appeal, that an application
for restitutio in integrum is possible only within a year after              Applicant for Com-             The Applicant
the expiry of the missed time-limit, cannot be accepted. Under               munity trade mark:
that argument, the possibility of restitution is removed by a
restrictive interpretation of Article 78 of Regulation (EC)                  Community trade mark           The     word      mark       ‘JELLO
No 94/40 in the very circumstances where protection is most                  sought:                        SCHUHPARK’ for products in
needed, namely when no written document whatever was                                                        Classes 18, 25 and 28 (particu-
served.                                                                                                     larly leather and imitations of
                                                                                                            leather, products of those
                                                                                                            materials in so far as they fall
                                                                                                            within Class 18, clothing, foot-
                                                                                                            wear and toys — Application
Finally, proof of service merely in the form of a fax confir-                                               No 107367
mation which the Office may have can never be sufficient.
                                                                             Proprietor of mark or          Schuhpark Fascies GmbH
                                                                             sign cited in the oppo-
                                                                             sition proceedings:
( 1) Decision of the First Board of Appeal in Case R 26/2001-1.
                                                                             Mark or sign cited in          German word mark ‘Schuhpark’
                                                                             opposition:                    for products in Class 25 (particu-
                                                                                                            larly boots, ankle boots, slippers,
                                                                                                            shoes and sandals)
 ---pagebreak--- 26.4.2003              EN                           Official Journal of the European Union                                          C 101/37
Decision of the Oppo-          Dismissal of the applicant’s appli-                —     the decision of the College of Commissioners of
sition Division:               cation for ‘clothing, footwear and                       5 December 2001 improperly terminating the
                               toys’. Dismissal of the opposition                       framework agreement of 20 September 1974, reiter-
                               as to the remainder.                                     ating its approval of ‘operational rules concerning
                                                                                        the levels of concertation, the concertation body and
Decision of the Board of       Dismissal      of   the    applicant’s                   the relevant procedures’ dated 20 January 2000 and
Appeal:                        appeal.                                                  an alleged ‘agreement’ of 4 April 2001 on the
                                                                                        ‘resources to be made available to the central and
Pleas in law:                  —     infringement                 of                    the local staff committees and the unions’;
                                     Article 8(1)(b) of Regulation
                                     (EC) No 40/94 (1);
                                                                            —     annul, to the extent necessary, the abovementioned
                               —     absence of risk of confusion;                decisions of 15 January 2002, 23 January 2002 and
                                                                                  5 December 2001;
                               —     little distinctive character of
                                     the opposing trade mark
                                                                            —     order the defendant to pay damages amounting to
                               —     lack of similarity of trade
                                                                                  EUR 100 000;
                                     marks
                               —     products largely dissimilar.
                                                                            —     order the defendant to pay the costs of of the action,
                                                                                  pursuant to Article 69(2) of the Rules of Procedure and
( 1) Council Regulation (EC) No 40/94 of 20 December 1993 on the                  the expenses necessarily incurred for the purpose of the
     Community trade mark (OJ 1994 L 11, p. 1).                                   proceedings, in particular the travel and subsistence
                                                                                  expenses and the remuneration of agents, advisers or
                                                                                  lawyers, under Article 73(b) of those rules.
Action brought on 4 February 2003 by André Hecq and                         Pleas in law and main arguments
Syndicat des Fonctionnaires Internationaux et Européens
(SFIE) against Commission of the European Communities
                          (Case T-34/03)                                    The applicant is an official of the Commission and secretary
                                                                            general of the ‘Syndicat des Fonctionnaires Internationaux et
                         (2003/C 101/68)                                    Européens’ (SFIE) trade union.
                    (Language of the case: French)
                                                                            In support of his application, the applicant alleges, first,
                                                                            infringement of the framework agreement of 20 September
                                                                            1974, in particular of the final provisions thereof, and breach
An action against the Commission of the European Communi-
                                                                            of the general principles of contract law. According to the
ties was brought before the Court of First Instance of the
                                                                            applicant, the framework agreement does not provide for
European Communities on 4 February 2003 by André Hecq,
                                                                            unilateral termination.
residing in Mondercange (Luxembourg), and Syndicat des
Fonctionnaires Internationaux et Européens (SFIE), whose
main offices are in Brussels, represented by Lucas Vogel,
lawyer.
                                                                            The applicant also alleges infringement of Articles 11 and 12
                                                                            of the framework agreement of 20 September 1974 in that
The applicant claims that the Court should:                                 the abovementioned provisions had not been agreed to by all
                                                                            the unions.
—     annul the decsion of the appointing authority of 4 Octo-
      ber 2002, notified to the applicant on 9 October 2002
      but received by him on 25 October 2002, rejecting the
      applicant’s complaint, lodged on 24 April 2002, pursuant              The applicant alleges next infringement of Article 24a of the
      to Article 90(2) of the Staff Regulations in which he                 Staff Regulations, Articles 18, 19 and 20 of the framework
      criticised various decisions, in particular:                          agreement of 20 September 1974, manifest error of assessment
                                                                            and breach of the principle of non-discrimination. According
      —     two separate decisions notified on 15 January 2002              to the applicant, the criteria relating to representativeness are
            and 23 January 2002 respectively;                               erroneous and arbitrary and favour certain unions.