CELEX: C2004/059/53
Language: en
Date: 2004-03-06 00:00:00
Title: Case T-3/04: Action brought on 7 January 2004 by Simonds Farsons Cisk Plc., against the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM)

6.3.2004              EN                          Official Journal of the European Union                                              C 59/33
In support of their claims the applicants submit that the                       as it refused the application for registration of VELOCITY
Commission, having only limited discretion, was obliged, in                     as a trade mark on the basis of Articles 7(1)(b) and (c) of
accordance with the principle of sound administration, to deal                  the CTMR;
diligently and impartially with the complaint in this case. They
argue that in that respect, that the Commission’s discretion in           —     order the Office to bear its own costs and pay those of
the matter at issue must correspond to the objective of                         the Applicant.
establishing a scheme which ensures that competition is not
distorted in the common market, so that the Member States
do not adopt, in favour of one undertaking, measures which
may give rise to the elimination or restriction of effective
competition in the market at issue.                                       Pleas in law and main arguments
                                                                          Trade mark concerned:           Verbal trade mark ‘VELOCITY’ —
This application also takes account of the fact that the                                                  Application No 1661842.
Commission itself has assessed the conditions of competition
in the referral decision, so as to include all the criteria which         Products or services:           Products and services in classes 9,
may be used for the purpose of determining whether the                                                    16, 37 and 42.
measures adopted maintain or preserve competition in the
markets at issue, and also that it has accepted commitments
                                                                          Challenged        Decision      Refusal of registration by the
which are substantially different in another current and very
                                                                          before the Board of             examiner.
similar case (M.2876 Newscorp/telepiú), and that therefore it
                                                                          Appeal:
cannot be claimed that the measures adopted by the Spanish
Government maintain or preserve competition in the markets
concerned.                                                                Pleas in law:                   Infringement of Article 7 (1) (b)
                                                                                                          and (c) of Regulation No 40/94.
(1) OJ L 395 of 30.12.89, p. 1.
                                                                          Action brought on 7 January 2004 by Simonds Farsons
                                                                          Cisk Plc., against the Office for Harmonisation in the
                                                                              Internal Market (Trade Marks and Designs) (OHIM)
Action brought on 2 January 2004 by Electronics for
Imaging, Inc., against Office for Harmonisation in the                                               (Case T-3/04)
    Internal Market (Trade Marks and Designs) (OHIM)
                                                                                                    (2004/C 59/53)
                          (Case T-1/04)
                                                                          (Language of the case to be determined pursuant to article 131(2) of
                         (2004/C 59/52)                                   the Rules of Procedure — language in which the case was submitted:
                                                                                                        English)
                  (Language of the case: English)
                                                                          An action against the Office for Harmonisation in the Internal
                                                                          Market (Trade Marks and Designs) (OHIM) was brought before
                                                                          the Court of First Instance of the European Communities on
An action against the Office for Harmonisation in the Internal            7 January 2004 by Simonds Farsons Cisk Plc., Mriehel, Malta,
Market (Trade Marks and Designs) (OHIM) was brought before                represented by Ms M. Bagnall and Mr I. Wood, Solictors and
the Court of First Instance of the European Communities on                Mr R. Hacon, Barrister. SA Spa Monopole, Compagnie fermière
2 January 2004 by Electronics for Imaging, Inc., Foster City,             de Spa, en abrégé SA Spa Monopole NV., was also a party to
California, USA, represented by Mr S. Malynicz, Barrister.                the proceedings before the Board of Appeal.
The applicant claims that the Court should:                               The applicant claims that the Court should:
—     annul the decision of the Fourth Board of Appeal dated              —     annul the Decision of the First Board of Appeal of
      25 August 2003, case number R 0793/2002-4 in so far                       4 November 2003;
 ---pagebreak--- C 59/34               EN                        Official Journal of the European Union                                         6.3.2004
—     uphold Decision No 2880/2002 of 27 September 2002                 Action brought on 5 January 2004 by R.K. Achaiber Sing
      of the Opposition Division;                                       against the Commission of the European Communities
                                                                                      and Council of the European Union
—     require OHIM to refuse the CTM Application;
                                                                                                    (Case T-4/04)
—     order Spa Monopole and/or OHIM to (a) bear the costs
      of the Opposition proceedings (b) the proceedings before
                                                                                                   (2004/C 59/54)
      the Board of Appeal, and (c) the costs of these proceed-
      ings.
                                                                                            (Language of the case: Dutch)
Pleas in law and main arguments
                                                                        An action against the Commission of the European Communi-
                                                                        ties and Council of the European Union was brought before
Applicant for the Com-       S.A. Spa Monopole N.V.                     the Court of First Instance of the European Communities on
munity trade mark:                                                      5 January 2004 by R.K. Achaiber Sing, residing in Leiden
                                                                        (Netherlands), represented by J.G.G. Wilgers.
The Community trade          The figurative mark ‘KINJI by SPA’
mark concerned:              for goods in Classes 29 and 32
                             (e.g. fruit pulp and mineral and           The applicant claims that the Court should:
                             aerated waters and other non-
                             alcoholic drinks containing fruit          1.    Primarily, declare that Decision 2000/666/EC contains a
                             juice)                                           measure having an equivalent effect to a quantitative and
                                                                              qualitative restriction on imports between Member States
Proprietor of the right to   The applicant                                    of the World Trade Organisation and that this decision is
the trade mark or sign                                                        at variance with Article 131 of the EEC Treaty, with the
asserted by way of oppo-                                                      result that it is null and void;
sition in the opposition
proceedings:                                                            2.    Primarily and in the alternative, order the European
                                                                              Community to pay compensation in respect of the
Trade mark or sign           The Community trade mark ‘KIN-                   damage, to be quantified, which the applicant has
asserted by way of oppo-     NIE’ (No 427 237) for goods                      incurred as a result of the obligations arising under
sition in the opposition     in Class 32 (Beers; non-alcoholic                Decision 2000/666/EC;
proceedings:                 drinks; preparations for making
                             beverages)                                 3.    Order the Community to pay the costs of the proceedings.
Decision of the Oppo-        Rejection of the trade mark
sition Division:             application
                                                                        Pleas in law and main arguments
Decision of the Board of     Annulment of the Decision of the
Appeal:                      Opposition Division and rejection
                             of the opposition                          The applicant imports live birds from non-member countries
                                                                        and states that he is obliged under the contested decision to
Grounds of claim:            —     Violation of Article 8 (1)(b)        incur costs for the establishment of a quarantine area. He states
                                   of Regulation (EC) No 40/            further that, as he has recently discovered, he is obliged to
                                   94;                                  incur further costs by reason of the national provisions giving
                                                                        effect to the contested decision.
                             —     Breach of Article 73 of Regu-
                                   lation (EC) 40/94;
                                                                        The applicant submits that the contested decision is at
                             —     Likelihood of confusion on           variance with the Agreement establishing the World Trade
                                   the part of the public in all,       Organisation, and in particular with Articles 2(2) and 3 of the
                                   or alternatively in a signifi-       Agreement on the Application of Sanitary and Phytosanitary
                                   cant proportion of territories       Measures. In the applicant’s view, the contested decision
                                   within the European Com-             constitutes a hidden barrier to trade which makes commerce
                                   munity.                              in live, non-protected birds practically impossible.