CELEX: C2003/044/69
Language: en
Date: 2003-02-22 00:00:00
Title: Case T-371/02: Action brought on 10 December 2002 by Bernard Barbé against the European Parliament

C 44/36               EN                          Official Journal of the European Union                                     22.2.2003
The Community trade mark in respect of which registration is              —     order the defendant and, where appropriate, the inter-
sought is the word mark ‘NIKE F.I.T.’ — application                             vener to pay all the costs of the proceedings and those
No 277731 in respect of goods in Class 25 ‘clothing, footwear                   incurred at the administrative stages of the opposition
and headgear’.                                                                  and appeal proceedings.
                                                                          Pleas in law and main arguments
                                                                          The applicant seeking the Community trade mark, the pro-
                                                                          prietor of the mark cited in opposition, the tenor of the
                                                                          decisions of the Opposition Division and the Board of Appeal
Action brought on 5 December 2002 by Muswellbrook                         and the pleas in law and main arguments are the same as those
Limited against the Office for Harmonisation in the                       in Case T-362/02 (MUSWELLBROOK LIMITED v OHIM).
                    Internal Market (OHIM)
                                                                          The Community trade mark in respect of which registration is
                        (Case T-366/02)                                   sought is the mixed mark ‘TRIAX NIKE SERIES’ with graphic
                                                                          — application No 252411 in respect of goods in Class 25
                                                                          ‘clothing, footwear and headgear’.
                         (2003/C 44/68)
                  (Language of the case: Spanish)
                                                                          Action brought on 10 December 2002 by Bernard Barbé
An action against the Office for Harmonisation in the Internal                           against the European Parliament
Market (OHIM) was brought before the Court of First Instance
of the European Communities on 5 December 2002 by
Muswellbrook Limited, established in Dublin (Ireland), rep-                                       (Case T-371/02)
resented by J. Casulá Oliver, lawyer.
                                                                                                   (2003/C 44/69)
The applicant claims that the Court should:
                                                                                            (Language of the Case: French)
—    declare incompatible with Regulation (EC) No 40/94 on
     the Community trade mark, in particular Article 15(2)(a)
     and/or Article 42(2) and (3) and/or Article 8(1)(b) thereof,
     the decision of the First Board of Appeal of the OHIM of             An action against the European Parliament was brought before
     30 September 2002 in case No R 880/1999-1, inasmuch                  the Court of First Instance of the European Communities on
     as it declares that the opponent has failed to prove                 10 December 2002 by Bernard Barbé, resident at Luxembourg,
     genuine use in the Community of the Spanish trade mark               represented by Alain Loraing, lawyer, with an address for
     No 88222 to distinguish ready-to-wear and other items                service in Luxembourg.
     of clothing in Class 25 during the five years preceding
     the publication of the application for a Community trade
     mark;                                                                The applicant claims that the Court should:
—    annul that decision in its entirety;                                 —     rule that the Parliament wrongly has not passed on to
                                                                                him the deductions from Mrs Boez’s salary which fell due
                                                                                up until 11 November 1998;
—    agree to vary that decision so as to declare that an
     assessment of and a ruling on the merits of the opposition
     to registration of Community trade mark No 252411 is                 —     order payment to him of the deductions made in respect
     appropriate, to which end the Court’s judgment should                      of the months from March 1998 to November 1998
     declare that Community trade mark No 252411 is                             inclusive;
     refused, or, in the alternative, refer the case back to the
     First Board of Appeal of the OHIM;                                   —     order the defendant to pay the costs.
 ---pagebreak--- 22.2.2003              EN                           Official Journal of the European Union                                            C 44/37
Pleas in law and main arguments                                             for the recruitment of administrators (Grade A 7/A 6) in the
                                                                            field of External Relations and Management of Aid to Third
                                                                            Countries, selecting ‘External Relations’, challenges the decision
The applicant challenges the decision of the appointing                     of the Commission, the examining body, to assess his test (e)
authority not to grant his request that the judgment of                     — written test — at one point below that necessary (19/40)
the Tribunal de Paix de Luxembourg (Magistrates’ Court,                     for admission to the oral test.
Luxembourg) of 26 November 1998 be correctly implemented
and that, consequently, the termination of attachment which
was ordered, with effect from 11 November 1998, in respect
of sums deducted by way of attachment from the salary of an                 In support of his claims the applicant alleges:
official of the defendant institution take effect on that date and
not in March 1998.                                                          —     Misuse of powers, insufficient statement of reasons and
                                                                                  breach of the rights of the defence as regards the refusal
                                                                                  to give him information as to the marking criteria let
In support of his claims, the applicant pleads:                                   alone the marking procedure and the marks of the
                                                                                  individual examiners.
—     the principle under which the institutions are bound by a
      duty to cooperate in good faith with national institutions;
                                                                            —     Breach of Article 3 of the Staff Regulations, insufficient
—     that the attachment procedure is entirely legal as regards                  statement of reasons and breach of the rights of the
      Community law.                                                              defence as regards the refusal to provide information as
                                                                                  to the linguistic knowledge of the third examiner.
                                                                            —     Breach of the principle of equal treatment in the test and
                                                                                  of the principle of sound administration. In that respect
                                                                                  it is stated that the material distributed to the candidates
                                                                                  in Italian was not prepared with sufficient care. It should
Action brought on 17 December 2002 by Alessandro                                  also be noted that there was inconsistency in the grounds
Cavallaro against the Commission of the European Com-                             relating to the interpretation of the ‘instructions to
                             munities                                             candidates’.
                         (Case T-375/02)                                    —     Clear error of fact in the marking of the first answer in
                                                                                  written test (e) of the competition.
                         (2003/C 44/70)
                                                                            —     Misrepresentation of the truth, illogicality and contradic-
                    (Language of the case: Italian)                               tory grounds as regards the marking of the second answer
                                                                                  in written test (e) of the competition.
An action against the Commission of the European Communi-
ties was brought before the Court of First Instance of the
European Communities on 17 December 2002 by Alessandro
Cavallaro, represented by C. Forte, lawyer.
The applicant claims that the Court should:
                                                                            Action brought on 9 December 2002 by ‘O’ against the
—     annul the decision of the Appointing Authority of                               Commission of the European Communities
      11 September 2002 to give him insufficient marks
      for written test (e) of the Open Competition for the
      recruitment of administrators (Grade A 7/A 6) COM/A/                                            (Case T-376/02)
      6/01 and, in consequence, not to admit him to the oral
      tests in that competition;
                                                                                                       (2003/C 44/71)
—     annul the subsequent stages of that competition, in so far
      as is necessary to restore the applicant’s rights;
                                                                                                (Language of the case: French)
—     order the defendant to pay the costs.
Pleas in law and main arguments                                             An action against the Commission of the European Communi-
                                                                            ties was brought before the Court of First Instance of the
                                                                            European Communities on 9 December 2002 by ‘O’, represent-
The applicant in this case, who had applied to take Open                    ed by Jean Van Rossum, Lawyer, with an address for service in
Competition COM/A/6/01 for the constitution of a reserve list               Luxembourg.