CELEX: C2003/007/41
Language: en
Date: 2003-01-11 00:00:00
Title: Case T-319/02: Action brought on 11 October 2002 by H.O. Sports Inc. against the Office for Harmonisation in the Internal Market (Trade Marks and Designs)

C 7/20                 EN                      Official Journal of the European Communities                                        11.1.2003
      —     ‘sportswear, jackets; T-shirts, sweatshirts, polo shirts,     Grounds of claim:               The decision is contradictory in
            volley shorts, training shorts and short pants; swim-                                         that although the Board of Appeal
            ming suits; hats; wet suits; wet suit boots; dry suits;                                       recognises that all the different
            water ski boots; water ski vests, water ski gloves;                                           observations and documents filed
            spray legs, all meant to be used for the practice of                                          by the H.O. Sports, Inc. in their
            wakeboard’ in international class 25;                                                         entirety constantly refer to the
                                                                                                          particular market of wakeboard,
                                                                                                          it sustains that acquired distinc-
                                                                                                          tiveness under Article 7 (3) of
      —     ‘water sport tow ropes, water sport tow handles;                                              Regulation No. 40/94 (1) has been
            water sport tow floats; inflatable tubes for rec-                                             established for certain goods only.
            reational use in water; towable water toys designed
            to carry a rider; wake boards; wake board bindings;
            wake board fins; water skis; trick water skis; jump
                                                                          (1 ) Council Regulation (EC) No 40/94 of 20.12.1993 on the Com-
            skis; water ski bindings; adjustable ski fins; water ski           munity trade mark (OJ L 11, p. 1).
            boat tow harnesses; water ski gloves; knee boards;
            water sport boards; water sport gear bags; water ski,
            wakeboard and knee board bags; water sport goods;
            dampers for use with water skis; wake boards to
            limit vibration and adjust flex, all meant to be used
            for the practice of wakeboard’ in international
            class 28.
                                                                          Action brought on 11 October 2002 by H.O. Sports Inc.
—     order the defendant to pay the costs, fees and disburse-            against the Office for Harmonisation in the Internal
      ments of this case and of the previous proceedings and                             Market (Trade Marks and Designs)
      appeals before OHIM Examination Division and the Third
      Board of Appeal respectively.
                                                                                                   (Case T-319/02)
                                                                                                     (2003/C 7/41)
                                                                                             (Language of the case: English)
Pleas in law and main arguments
                                                                          An action against the Office for Harmonisation in the Internal
                                                                          Market (Trade Marks and Designs) was brought before the
The trade mark con-             The word mark ‘HYPERLITE’ —               Court of First Instance of the European Communities on
cerned:                         application No 997122                     11 October 2002 by H.O. Sports Inc., Redmond, Washington,
                                                                          U.S.A., represented by Mr Fabrizio Jacobacci, lawyer.
Goods or service con-           Goods in classes 18, 25 and 28
cerned:                                                                   The applicant claims that the Court should:
                                                                          —     amend the decision of 17 July 2002 (File No. R 140/
Decision          contested     Refusal of registration by the                  2002-3) of the Third Board of Appeal of the Office for
before the Board of             examiner                                        Harmonisation in the Internal Market (Trade Marks
Appeal:                                                                         and Designs) and allow the Community Trade Mark
                                                                                Application to proceed to registration in connection with
                                                                                the following goods:
Decision of the Board of        Annulment of the decision of the
Appeal:                         examiner in so far as it rejects                —     ‘backpacks; travel bags; duffel bags for practice of
                                registration of the application for                   wakeboard’ in international class 18;
                                ‘wakeboards, wakeboard bind-
                                ings; wakeboard fins; wakeboard                 —     ‘sportswear, jackets; T-shirts, sweatshirts, polo shirts,
                                bags; dampers for use with wake                       volley shorts, training shorts and short pants; swim-
                                boards to limit vibration and                         ming suits; hats; wet suits; wet suit boots; dry suits;
                                adjust flex’, all in class 28, and                    water ski boots; water ski vests, water ski gloves;
                                dismissal of the appeal for the                       spray legs, all meant to be used for the practice of
                                remainder.                                            wakeboard’ in international class 25;
 ---pagebreak--- 11.1.2003               EN                      Official Journal of the European Communities                                        C 7/21
      —     ‘water sport tow ropes, water sport tow handles;                     subscribers concerned or’ and ‘the choice between these
            water sport tow floats; inflatable tubes for rec-                    options to be determined by national legislation’ in
            reational use in water; towable water toys designed                  Article 13(3);
            to carry a rider; wake boards; wake board bindings;
            wake board fins; water skis; trick water skis; jump            —     make an appropriate order as to costs.
            skis; water ski bindings; adjustable ski fins; water ski
            boat tow harnesses; water ski gloves; knee boards;
            water sport boards; water sport gear bags; water ski,
            wakeboard and knee board bags; water sport goods;
            dampers for use with water skis; wake boards to                Pleas in law and main arguments
            limit vibration and adjust flex, all meant to be used
            for the practice of wakeboard’ in international
            class 28.                                                      The applicant, a frequent user of direct mailing over the
                                                                           internet and founder of the internet site Internet-libre.net,
—     order the defendant to pay the costs, fees and disburse-             seeks the annulment of the abovementioned provisions of
      ments of this case and of the previous proceedings and               Directive 2002/58/EC of the European Parliament and of the
      appeals before OHIM Examination Division and the Third               Council of 12 July 2002 concerning the processing of
      Board of Appeal respectively.                                        personal data and the protection of privacy in the electronic
                                                                           communications sector (Directive on privacy and electronic
                                                                           communications) (OJ 2002 L 201, p. 37).
Pleas in law and main arguments
                                                                           In support of its arguments, the applicant alleges lack of legal
                                                                           basis to the contested act insofar as its adoption was not
The pleas in law and main arguments advanced are identical                 necessary for the single market.
to those put forward in Case T-318/02 (H.O. Sports Company,
Inc. / OHIM).
                                                                           Furthermore, the directive in question fails to observe the right
                                                                           to freedom of expression mentioned in Articles 5 of the
                                                                           Declaration of Fundamental Rights and Freedoms, 11 of the
                                                                           Charter of Fundamental Rights of the European Union and 10
                                                                           of the European Convention for the Protection of Human
                                                                           Rights and Fundamental Freedom and the principle of free
                                                                           trade recognised by all the Member States and that of free
Action brought on 22 October 2002 by Paul Vannieuwen-                      competition, enshrined in particular in Articles 3 and 4 and
huyze-Morin against European Parliament and Council of                     Title VI of the Treaty.
                       the European Union
                         (Case T-321/02)
                           (2003/C 7/42)
                    (Language of the case: French)                         Action brought on 14 October 2002 by Monique Breton
                                                                             against Court of Justice of the European Communities
An action against the European Parliament and the Council of                                       (Case T-323/02)
the European Union was brought before the Court of First
Instance of the European Communities on 22 October 2002
by Paul Vannieuwenhuyze-Morin, residing in Grigny (France),                                         (2003/C 7/43)
represented by Guy Dupaigne, lawyer.
                                                                                              (Language of the case: French)
The applicant claims that the Court should:
—     annul Article 13(1) and (2) of Directive 2002/58/EC of
      the European Parliament and of the Council of 12 July                An action against the Court of Justice of the European
      2002 concerning the processing of personal data and the              Communities was brought before the Court of First Instance
      protection of privacy in the electronic communications               of the European Communities on 14 October 2002 by
      sector (Directive on privacy and electronic communi-                 Monique Breton, residing in Howald (Luxembourg), represent-
      cations), published in the Official Journal on 31 July               ed by Albert Coolen, Jean-Noël Louis and Étienne Marchal,
      2002, and the words ‘either without the consent of the               avocats.