CELEX: C2003/304/58
Language: en
Date: 2003-12-13 00:00:00
Title: Case T-342/03: Action brought on 3 October 2003 by El Corte Inglés S.A. against the Office for Harmonisation in the Internal Market (OHIM)

13.12.2003            EN                         Official Journal of the European Union                                            C 304/31
Action brought on 15 September 2003 by ATOMIC                            Decision of the Board of       Dismissal of the applicant’s appeal
Austria GmbH against the Office for Harmonisation in                     Appeal:
  the Internal Market (Trade marks and Designs) (OHIM)
                                                                         Pleas in law:                  —     the decision is incorrect
                                                                                                              because the Board of Appeal
                        (Case T-318/03)
                                                                                                              did not find against the
                                                                                                              Opposition Division for fail-
                                                                                                              ing to take account of all the
                        (2003/C 304/57)                                                                       evidence adduced;
                                                                                                        —     in the alternative, the
                  (Language of the case: German)                                                              decision is incorrect because
                                                                                                              the Board failed to find that
                                                                                                              the Opposition Division’s
                                                                                                              failure to draw the appli-
                                                                                                              cant’s attention to the miss-
An action against the Office for Harmonisation in the Internal                                                ing documents contrary to
Market (Trade Marks and Designs) (OHIM) was brought before                                                    Rule 20(2) of Regulation
the Court of First Instance of the European Communities on                                                    (EC) No 2868/95 constituted
15 September 2003 by ATOMIC Austria GmbH, represented                                                         a procedural irregularity;
by G. Kucsko, lawyer. Fabricas Agrupadas de Muñecas de Onil
S.A., Alicante (Spain) was also a party to the proceedings                                              —     in the alternative, the
before the Board of Appeal.                                                                                   decision      was     incorrect
                                                                                                              because the Board of Appeal
                                                                                                              failed to hold that the Oppo-
                                                                                                              sition Division’s failure to
The applicant claims that the Court should:                                                                   point out the altered practice
                                                                                                              was an infringement of the
                                                                                                              principle of the protection of
—     annul the Decision of the Second Board of Appeal of the                                                 legitimate expectations.
      Office for Harmonisation in the Internal Market of 9 July
      2003 relating to opposition procedure No B 442 873;
—     order the Office for Harmonisation in the Internal Mark
      to reimburse the costs.
Pleas in law and main arguments
                                                                         Action brought on 3 October 2003 by El Corte Inglés S.A.
                                                                         against the Office for Harmonisation in the Internal
Applicant for Com-            Fabricas Agrupadas de Muñecas
                                                                                                  Market (OHIM)
munity trade mark:            de Onil S.A.
Community trade mark          Word mark ‘ATOMIC BLITZ’ for
                                                                                                  (Case T-342/03)
sought:                       goods in Class 28 (including
                              games and playthings; gymnastic
                              and sporting articles not included
                              in other classes)                                                   (2003/C 304/58)
Proprietor of mark or         The applicant
sign cited in the oppo-                                                                     (Language of the case: Spanish)
sition proceedings:
Mark or sign cited in         Austrian word mark ‘ATOMIC’
opposition:                   for inter alia goods in Class 28
                              (including sporting and gymnastic          An action against the Office for Harmonisation in the Internal
                              articles and games)                        Market (OHIM) was brought before the Court of First Instance
                                                                         of the European Communities on 3 October 2003 by El Corte
Decision of the Oppo-         Rejection of the opposition                Inglés, with its registered office in Madrid, represented by Juan
sition Division:                                                         Luis Rivas Zurdo and Emilio López Leiva, lawyers.
 ---pagebreak--- C 304/32               EN                          Official Journal of the European Union                                      13.12.2003
The applicant claims that the Court should:                                Pleas in law and main arguments
—     set aside the decision of the First Board of Appeal of
      OHIM of 9 July 2003 in Case R 0576/2002-1;                           Applicant for Com-            Barilla Alimentare S.p.A.
                                                                           munity trade mark:
—     refuse to register as a Community mark No 488.940
      DAVID LLOYD in Class 25, and                                         Community trade mark          Figurative mark including the
                                                                           sought:                       words ‘SELEZIONE ORO’ and
                                                                                                         ‘BARILLA’ — Application No
—     order the other party or parties to pay the costs.                                                 289.405 for products in Class
                                                                                                         30 (pasta, flour and preparations
                                                                                                         made from cereals, bread, pastry
                                                                                                         and confectionery, yeast, baking-
Pleas in law and main arguments                                                                          powder, sauces).
                                                                           Proprietor of mark or         The applicant.
The pleas in law and main arguments are those already put                  sign cited in the oppo-
forward in Case T-341/03 El Corte Inglés v OHIM.                           sition proceedings:
                                                                           Mark or sign cited in         Word marks ‘ORO’ (Italian trade
The Community trade mark which is the subject of the dispute               opposition:                   mark No 307376 and inter-
is the mark ‘DAVID LLOYD’ (Application No 488.940, for                                                   national trade mark No 435773)
goods in Classes 3, 5, 25, 28, 36, 41 and 42). The applicant,                                            and ‘ORO SAIWA’ (Italian trade
the marks cited in the opposition proceedings, the proprietor                                            mark No 332.864) for products
and the decisions of the Opposition Division and the Board of                                            in Class 30.
Appeal are identical to those referred to in that case.
                                                                           Decision of the Oppo-         Opposition refused.
                                                                           sition Division:
                                                                           Decision of the Board of      Appeal dismissed.
                                                                           Appeal:
                                                                           Pleas in law:                 Incorrect application of Article
Action brought on 2 October 2003 by SAIWA S.p.A.                                                         8(1)(b) of Regulation (EC) No 40/
against the Office for Harmonisation in the Internal                                                     94 (likelihood of confusion).
         Market (Trade Marks and Designs) (OHIM)
                         (Case T-344/03)
                         (2003/C 304/59)
                   (Language of the case: Italian)
                                                                           Action brought on 30 October 2003 by Frischpack GmbH
                                                                           & Co KG against the Office for Harmonisation in the
                                                                                    Internal Market (Trade Marks and Designs)
An action against the Office for Harmonisation in the Internal
Market (Trade Marks and Designs) (OHIM) was brought before                                         (Case T-360/03)
the Court of First Instance of the European Communities on
2 October 2003 by SAIWA S.p.A., represented by Giuseppe
Sena, Paola Tarchini, Jean-Pierre Karsenty and Martine Karsen-                                     (2003/C 304/60)
ty-Ricard, lawyers. Barilla Alimentare S.p.A. was also a party
to the proceedings before the Board of Appeal.
                                                                                             (Language of the case: German)
The applicant claims that the Court should:
—     annul the decision of the Fourth Board of Appeal of                  An action against the Office for Harmonisation in the Internal
      OHIM of 18 July 2003 in Case R 480/2002-4; order that                Market (Trade Marks and Designs) was brought before the
      registration be refused in respect of Barilla’s Community            Court of First Instance of the European Communities on
      trade mark application No 289405; order the defendant                30 October 2003 by Frischpack GmbH & Co KG, Mailling
      to pay all the costs.                                                (Germany), represented by P. Bornemann, lawyer.