CELEX: C2003/135/55
Language: en
Date: 2003-06-07 00:00:00
Title: Case T-112/03: Action brought on 27 March 2003 by L'Oréal S.A. against the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM)

C 135/34               EN                       Official Journal of the European Union                                           7.6.2003
Pleas in law and main arguments                                         the Court of First Instance of the European Communities on
                                                                        27 March 2003 by L’Oréal S.A., Paris, France, represented by
                                                                        Mr X. Buffet Delmas d’Autane, lawyer.
In 1999 the World Trade Organisation found that the EC
regime for the importation of bananas, as amended by Council
Regulation No 1637/98 ( 1) and Commission Regulation
No 2362/98 (2), was WTO-incompatible. Following that ruling,            A further party to the proceedings before the Board of Appeal
the United States, with WTO authorisation, adopted certain              was Revlon (Suisse) S.A.
retaliatory measures against EC products. These measures
included a 100 % duty on bath preparations imported to the
US from the EC. The first applicant is a Scottish company               The applicant claims that the Court should:
which produces, amongst other things, bath products, a large
proportion of which it used to export to the United States. The
other two applicants are officers of that company. The                  —     annul the decision of the Fourth Board of Appeal of
applicants allege that as a result of the retaliatory measures,               the OHIM of 15 January 2003 regarding the appeal
the first applicant’s sales to the US decreased substantially                 No R0396/2001-4 relating to the opposition proceedings
causing it to suffer serious material losses and subjecting the               No B 215048 (Community application No 1011576);
other two applicants to stress and anxiety which caused them
non-material damage. The applicants claim compensation
under Articles 235 and 288 EC. In support of their application          —     order that the costs of the action and the appeal are to be
they submit that, by adopting Regulation 2362/98, the                         borne by the OHIM.
defendant violated the fundamental policy of the Community
to make the ‘banana regime’ WTO compatible as well as a
clear mandate from the European Council to that effect.
Moreover, Regulation 2362/98 allegedly violates the freedom
to pursue a trade or business, the principle of proportionality,        Pleas in law and main arguments
the principle of non-discrimination and finally the principle of
good faith in international law and the legitimate expectations
traders can derive from that. According to the applicants the
                                                                        Applicant for the Com-         L’Oréal S.A.
breach of law is manifest and serious and the rules of law
                                                                        munity trade mark:
violated qualify as rules for the protection of the individual.
Further, there exists a causal link between the unlawfulness of
Regulation 2362/98 and the damage allegedly suffered by the             Community trade mark           The word mark ‘FLEXI AIR’ for
applicants, entitling the latter to compensation.                       sought:                        certain goods in class 3 (Sham-
                                                                                                       poos; gels, mousses and balms;
                                                                                                       essential oils; ...) (Application
( 1) OJ L 210, 28.7.1998, p. 28.                                                                       No 1011576)
( 2) OJ L 293, 31.10.1998, p. 32.
                                                                        Proprietor of mark or          Revlon (Suisse) S.A.
                                                                        sign cited in the oppo-
                                                                        sition proceedings:
                                                                        Mark or sign cited in          Several national word marks
                                                                        opposition:                    ‘FLEX’ for certain goods in class 3
                                                                                                       and 34 (soaps, essential oils,
Action brought on 27 March 2003 by L’Oréal S.A. against                                                Shampoo, ...)
the Office for Harmonisation in the Internal Market
              (Trade Marks and Designs) (OHIM)
                                                                        Decision of the Oppo-          Rejection of the community trade
                                                                        sition Division:               mark application.
                         (Case T-112/03)
                                                                        Decision of the Board of       Dismissal of the appeal brought
                         (2003/C 135/55)                                Appeal:                        by L’Oréal S.A.
                                                                        Pleas in law:                  —     Breach of article 43(2) of
(Language of the case to be determined pursuant to Article 131(2)
                                                                                                             Council regulation No 40/
of the Rules of Procedure — language in which the application was
                                                                                                             94 ( 1) and rule 22(1) Com-
                         submitted: English)
                                                                                                             mission           Regulation
                                                                                                             No 2868/95 ( 2) in that there
                                                                                                             is, according to the appli-
                                                                                                             cant, no time limit for the
An action against the Office for Harmonisation in the Internal                                               applicant to request evidence
Market (Trade Marks and Designs) (OHIM) was brought before                                                   of use.
 ---pagebreak--- 7.6.2003               EN                         Official Journal of the European Union                                         C 135/35
                               —    Violation of the principle of         The applicant claims that the Court should:
                                    continuity between the
                                    Opposition Division and the           —     annul the decisions of 30 April 2002 of the Director
                                    Board of Appeal in that the                 of the ‘Administration and Personnel Management for
                                    Board of Appeal refused to                  Luxembourg and Ispra’ Directorate in DG ADMIN refus-
                                    examine the applicant’s                     ing the applicant the installation allowance and daily
                                    request for proof of use.                   subsistence allowance during his secondment to Athens,
                                                                                and the installation allowance upon his return to Luxem-
                               —    Breach of Article 8(1) of
                                                                                bourg, and that limiting the transferable part of his salary
                                    Council Regulation 40/94 in
                                                                                to 35 % of his net emoluments from his place of
                                    that there is no likelihood of
                                                                                secondment to his place of work and habitual residence;
                                    confusion.
                               —    Breach of Article 8(2) (a) (ii)       —     order the defendant to pay the costs.
                                    of Council Regulation 40/94
                                    in that the Board of Appeal
                                    failed to assess whether the
                                    national trade mark could
                                    validly be invoked to oppose          Pleas in law and main arguments
                                    the Community trade mark
                                    application      under     the
                                    national legislation.                 The applicant, who was stationed in Luxembourg, was second-
                                                                          ed in the interests of the service to the Greek Ministry of
                                                                          Health in Athens. By its contested decisions, the defendant
                                                                          refused him the installation allowance and daily subsistence
( 1) Council Regulation (EC) No 40/94 of 20 December 1993 on the          allowance and limited the part of his salary he was allowed to
     Community trade mark (OJ 11, p. 1).                                  transfer to Luxembourg to 35 %.
( 2) Commission Regulation (EC) No 2868/95 of 13 December
     1995 implementing Council Regulation (EC) No 40/94 on the
     Community trade mark (OJ L 303, p. 1).
                                                                          With regard to the refusal of the installation allowance and the
                                                                          daily subsistence allowance, the applicant claims infringement
                                                                          of Articles 5 and 10 of Annex VII to the Staff Regulations in
                                                                          support of his arguments. With regard to the 35 % cap on the
                                                                          amount of his salary that he was allowed to transfer to
                                                                          Luxembourg, he claims infringement of Article 38(d) of the
                                                                          Staff Regulations and of Article 17 of Annex VII to the Staff
                                                                          Regulations.
Action brought on 31 March 2003 by Georgios Gouvras
     against Commission of the European Communities
                                                                          Action brought on 7 April 2003 by Samar SpA against
                          (Case T-113/03)                                 the Office for Harmonisation in the Internal Market
                                                                                        (Trade Marks and Designs) (OHIM)
                         (2003/C 135/56)
                                                                                                   (Case T-115/03)
                   (Language of the case: French)                                                  (2003/C 135/57)
                                                                                             (Language of the case: Italian)
An action against the Commission of the European Communi-
ties was brought before the Court of First Instance of the                An action against the Office for Harmonisation in the Internal
European Communities on 31 March 2003 by Georgios                         Market (Trade Marks and Designs) (OHIM) was brought before
Gouvras, resident in Bereldange, Luxembourg, represented by               the Court of First Instance of the European Communities on
Albert Coolen, Jean-Noël Louis, Etienne Marchal and Sébastien             7 April 2003 by Samar SpA, represented by Alessandro Ruo,
Orlandi, lawyers, with an address for service in Luxembourg.              lawyer.