CELEX: C2003/044/67
Language: en
Date: 2003-02-22 00:00:00
Title: Case T-365/02: Action brought on 5 December 2002 by Muswellbrook Limited against the Office for Harmonisation in the Internal Market (OHIM)

22.2.2003              EN                         Official Journal of the European Union                                           C 44/35
of the European Communities on 5 December 2002 by                         Action brought on 5 December 2002 by Muswellbrook
Muswellbrook Limited, established in Dublin (Ireland), rep-               Limited against the Office for Harmonisation in the
resented by J. Casulá Oliver, lawyer.                                                          Internal Market (OHIM)
                                                                                                   (Case T-365/02)
The applicant claims that the Court should:
                                                                                                    (2003/C 44/67)
—     declare incompatible with Regulation (EC) No 40/94 on
      the Community trade mark, in particular Article 15(2)(a)                               (Language of the case: Spanish)
      and/or Article 42(2) and (3) thereof, the decision of the
      First Board of Appeal of the OHIM of 30 September
      2002 in case No R 73/2000-1, inasmuch as it declares
      that the opponent has failed to prove genuine use in the
      Community of the Spanish trade mark No 88222 to                     An action against the Office for Harmonisation in the Internal
      distinguish ready-to-wear and other items of clothing in            Market (OHIM) was brought before the Court of First Instance
      Class 25 during the five years preceding the publication            of the European Communities on 5 December 2002 by
      of the application for a Community trade mark;                      Muswellbrook Limited, established in Dublin (Ireland), rep-
                                                                          resented by J. Casulá Oliver, lawyer.
—     annul that decision in its entirety;
                                                                          The applicant claims that the Court should:
—     agree to vary that decision so as to declare that an
      assessment of and a ruling on the merits of the opposition          —     declare incompatible with Regulation (EC) No 40/94 on
      to registration of Community trade mark No 277889 is                      the Community trade mark, in particular Article 15(2)(a)
      appropriate, to which end the Court’s judgment should                     and/or Article 42(2) and (3) thereof, the decision of the
      declare that Community trade mark No 277889 is                            First Board of Appeal of the OHIM of 30 September
      refused, or, in the alternative, refer the case back to the               2002 in case No R 833/1999-1, inasmuch as it declares
      First Board of Appeal of the OHIM;                                        that the opponent has failed to prove genuine use in the
                                                                                Community of the Spanish trade mark No 88222 to
                                                                                distinguish ready-to-wear and other items of clothing in
—     order the defendant and, where appropriate, the inter-                    Class 25 during the five years preceding the publication
      vener to pay all the costs of the proceedings and those                   of the application for a Community trade mark;
      incurred at the administrative stages of the opposition
      and appeal proceedings.
                                                                          —     annul that decision in its entirety;
                                                                          —     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 277731 is
                                                                                appropriate, to which end the Court’s judgment should
Pleas in law and main arguments                                                 declare that Community trade mark No 277731 is
                                                                                refused, or, in the alternative, refer the case back to the
                                                                                First Board of Appeal of the OHIM;
The applicant seeking the Community trade mark, the pro-                  —     order the defendant and, where appropriate, the inter-
prietor of the mark cited in opposition, the tenor of the                       vener to pay all the costs of the proceedings and those
decisions of the Opposition Division and the Board of Appeal                    incurred at the administrative stages of the opposition
and the pleas in law and main arguments are the same as those                   and appeal proceedings.
in Case T-362/02 (MUSWELLBROOK LIMITED v OHIM).
The Community trade mark in respect of which registration is              Pleas in law and main arguments
sought is the mixed mark ‘NIKE’ with ‘swoosh’ graphic —
application No 277889 in respect of goods in Class 25
‘clothing, footwear and headgear’.                                        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
                                                                          and the pleas in law and main arguments are the same as those
                                                                          in Case T-362/02 (MUSWELLBROOK LIMITED v OHIM).
 ---pagebreak--- 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.