CELEX: C2002/044/40
Language: en
Date: 2002-02-16 00:00:00
Title: Case T-294/01: Action brought on 3 December 2001 by Lucía Aparicio Chofré against Commission of the European Communities

16.2.2002             EN                     Official Journal of the European Communities                                          C 44/21
Pleas in law and main arguments                                         The applicant claims that the Court should:
Applicant for the Com-       The applicant                              —      annul the decision of 29 January 2001 of the Head of
munity trade mark:                                                             Unit ADMIN B 3 fixing her place of recruitment at
                                                                               Brussels and refusing to grant her the daily subsistence
The Community trade          Word mark ‘BASS’ — application                    allowance;
mark concerned:              No 161331, registration sought
                             in respect of goods in Class 25            —      annul the implied rejection of the applicant’s complaint
                             (footwear and clothing)                           of 27 April 2001 against the original contested decision;
Proprietor of the right to   Pash Textilvertrieb und Einzelhan-         —      order the Commission to pay to the applicant the
the trade mark or sign       del GmbH                                          amounts to which she is entitled as a result of having
asserted by way of oppo-                                                       Rome as her place of recruitment, as set out in the
sition in the opposition                                                       grounds, and in particular the daily subsistence allowance,
proceedings:                                                                   with default interest at 7 % per annum, as from the date
                                                                               on which those amounts fell due until payment is made
Trade mark or sign           German mark registered under                      in full;
asserted by way of oppo-     the name ‘PASH’, registered in
sition in the opposition     order to distinguish various               —      order the Commission to pay the costs.
proceedings:                 articles in international classes 18
                             and 25
Decision of the Oppo-        Opposition dismissed                       Pleas in law and main arguments
sition Division:
Decision of the Board of     Annulment of the decision of the           The applicant was seconded to the Commission in Brussels for
Appeal:                      Opposition Division                        three years before being engaged as a member of the auxiliary
                                                                        staff. For that purpose, the applicant’s place of recruitment was
Grounds of claim:            —     Inconsistency between the            set as Rome. The applicant was subsequently engaged as a
                                   form of order sought and             member of the temporary staff for an indeterminate period,
                                   the order made, since the            with Brussels as the place of recruitment. That decision is
                                   opposition was not brought           contested by the applicant.
                                   against the ‘shoes’ men-
                                   tioned in Class 25                   In support of her application, the applicant pleads an error in
                                                                        law as regards the concept of ‘residence’ and a manifest error
                             —     Coexistence of the marks
                                                                        of assessment. According to the applicant, her residence in
                                   ‘BASS’ and ‘PASH’ on the
                                                                        Brussels was provisional during the entire period of her
                                   German market
                                                                        engagement with the Commission in Brussels. In her sub-
                             —     Misapplication       of    Ar-       mission, the facts demonstrate that her habitual residence
                                   ticle 8(1)(b) of Regulation          remained Rome. Moreover, the applicant claims that the
                                   (EC) No 40/94 (likelihood of         Commission illegally withdrew a decision giving rise to
                                   confusion).                          entitlement. Initially, the place of recruitment of the applicant
                                                                        was Rome when she took up her duties as a member of
                                                                        the temporary staff. That decision was withdrawn by the
                                                                        subsequent contested decision not to grant the applicant
                                                                        entitlement to the daily subsistence allowance.
Action brought on 3 December 2001 by Donatella Ineich-
   en against Commission of the European Communities
                        (Case T-293/01)                                 Action brought on 3 December 2001 by Lucı́a Aparicio
                                                                        Chofré against Commission of the European Communities
                         (2002/C 44/39)
                                                                                                 (Case T-294/01)
                  (Language of the case: French)
                                                                                                  (2002/C 44/40)
                                                                                           (Language of the case: Spanish)
An action against the Commission of the European Communi-
ties was brought before the Court of First Instance of the
European Communities on 3 December 2001 by Donatella
Ineichen, residing in Brussels, represented by Marc-Albert              An action against the Commission of the European Communi-
Lucas, lawyer.                                                          ties was brought before the Court of First Instance of the
 ---pagebreak--- C 44/22                EN                     Official Journal of the European Communities                                       16.2.2002
European Communities on 3 December 2001 by Lucı́a                        The applicant claims that the Court should:
Aparicio Chofré, residing in Valencia (Spain), represented by
Gloria Ballester Cañada, lawyer.
                                                                         —     annul the decision adopted on 19 September 2001 by
                                                                               the Third Board of Appeal in Case No R 826/2000-3;
The applicant claims that the Court should:
                                                                         —     order the defendant to proceed with the registration
                                                                               proceedings in respect of Community trade mark appli-
—     annul the decision of the selection board in general                     cation No 607895, in particular to re-open the opposition
      competition COM/B/01 in the event that it does not mark                  proceedings pending under opposition No B 190746
      the tests sat by the applicant on 6 July 2001.                           and, following the conclusion of those opposition pro-
                                                                               ceedings, in so far as Community trade mark application
                                                                               No 607895 is not found to be excluded from registration
                                                                               in accordance with the first sentence of Article 43(5) of
                                                                               the Community trade mark regulation (1), order the
Pleas in law and main arguments                                                defendant to register the trade mark applied for pursuant
                                                                               to Article 45 of that regulation;
The applicant claims that the contested decision, which
excludes her from the competition on the ground that                     —     order the defendant to pay the costs.
she does not meet the conditions relating to professional
experience required under Point III.B of the competition notice,
not only adversely affects her but, moreover, is unlawful and
contrary to the wording of the competition notice (1), according
to which candidates must have acquired, by the deadline for              Pleas in law and main arguments
the submission of applications, at least 4 years’ professional
experience. The applicant argues that, in accordance with the
criteria laid down in the notice for the calculation of the period       The trade mark applied         the verbal mark ‘OLDENBURGER’
of professional experience, she has shown that she has acquired          for:                           — Application No 607895
7 years and 8 months of experience, so that the board should
have allowed her to take part in the competition.                        Goods or services:             goods in Classes 29, 30 and 32
                                                                                                        (including milk and dairy prod-
                                                                                                        ucts)
(1) Published in OJ 2001 C 24A.
                                                                         Decision         contested     refusal of registration by the
                                                                         before the Board of            examiner
                                                                         Appeal:
                                                                         Decision of the Board of       rejection of the appeal
                                                                         Appeal:
                                                                         Grounds of claim:              —     error of law in the appli-
                                                                                                              cation of Article 7(1)(c) and
Action brought on 3 December 2001 by Nordmilch eG                                                             Article 7(2) of Regulation
against the Office for Harmonisation in the Internal                                                          (EC) No 40/94;
               Market (Trade Marks and Designs)
                                                                                                        —     misinterpretation of Article
                                                                                                              12(b) of Regulation (EC)
                         (Case T-295/01)                                                                      No 40/94;
                                                                                                        —     error of law by the defendant
                          (2002/C 44/41)                                                                      in failing to call upon the
                                                                                                              applicant to give a dis-
                                                                                                              claimer.
                   (Language of the case: German)
                                                                         (1) Council Regulation (EC) No 40/94 of 20 December 1993 on the
An action against the Office for Harmonisation in the Internal
                                                                             Community trade mark (OJ 1994 L 11, p. 1).
Market (Trade Marks and Designs) was brought before the
Court of First Instance of the European Communities on
3 December 2001 by Nordmilch eG, of Zeven (Germany),
represented by C. Spintig, lawyer.