CELEX: C2004/059/56
Language: en
Date: 2004-03-06 00:00:00
Title: Case T-7/04: Action brought on 7 January 2004 by Shaker s.a.s. di Lucia Laudato & C. against the Office for Harmonisation in the Internal Market (Trade Marks and Designs)

6.3.2004              EN                          Official Journal of the European Union                                            C 59/35
Action brought on 2 January 2004 by Carlo Scano against                   Action brought on 7 January 2004 by Shaker s.a.s. di
       the Commission of the European Communities                         Lucia Laudato & C. against the Office for Harmonisation
                                                                               in the Internal Market (Trade Marks and Designs)
                           (Case T-5/04)
                                                                                                   (Case T-7/04)
                         (2004/C 59/55)
                                                                                                  (2004/C 59/56)
                   (Language of the case: French)
                                                                                             (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
European Communities on 2 January 2004 by Carlo Scano,                    An action against the Office for Harmonisation in the Internal
resident in Brussels (Belgium), represented by Marc-Albert                Market was brought before the Court of First Instance of the
Lucas, lawyer.                                                            European Communities on 7 January 2004 by Shaker s.a.s. di
                                                                          Lucia Laudato & C., represented by F. Sciaudone, lawyer. The
                                                                          other party to the proceedings before the Board of Appeal was
The applicant claims that the Court should:
                                                                          Liminana y Botella S.L.
—     annul the decision of the selection board in Competition
      COM/PA/02 determining the applicant’s results in the
      pre-selection tests;                                                The applicant claims that the Court should:
—     annul the list of successful candidates in Subject Area             —     annul the contested decision and/or vary it by rejecting
      No 3 of the competition and any decision adopted on                       the opposition by Liminana y Botella S.L., and by granting
      that basis;                                                               the application for registration of the Community trade
                                                                                mark submitted by the applicant;
—     order the Commission to pay to him compensation for
      non-material damage to him in a sum to be fixed by the              —     order OHIM to pay the costs of these proceedings.
      Court;
—     order the Commission to pay the costs.
                                                                          Pleas in law and main arguments
Pleas in law and main arguments                                           Party seeking the regis-      The applicant
                                                                          tration of the Com-
                                                                          munity trade mark:
The applicant, who lodged his candidature for Competition
COM/PA/02 for promotion from category B to category A,
                                                                          Relevant      Community       Figurative mark ‘Limoncello della
choosing the subject area ‘Human Resources Management/
                                                                          mark:                         Costiera Amalfitana-Shaker’ —
Administrative Organisation and Coordination’, seeks firstly
                                                                                                        Registration application No
the annulment of the selection board’s decision determining
                                                                                                        1267434 for products in Class-
his results in the pre-selection test and on that basis refusing
                                                                                                        es 29, 32 and 33 (jellies, preserves,
to admit him to the oral test.
                                                                                                        jams and liqueurs), subsequently
                                                                                                        limited to Classes 29 and 33.
In support of his claims the applicant pleads a breach of the
principles of good administration, of the duty to have regard             Owner of the mark or          Liminana y Botella S.L.
for the interests of officials, and of the principles of equal            distinctive sign asserted
treatment of candidates throughout the competition and                    in the opposition pro-
of objectivity when choosing between them. He claims,                     ceedings:
furthermore, that there was a manifest error of assessment in
that the sixth multiple choice question in the Italian version of         Mark or distinctive sign      Spanish word mark ‘limonchelo’,
the verbal and numerical test contained differences, caused by            asserted in the oppo-         for products in Class 33.
translation errors, from the English and French versions.                 sition proceedings:
Consequently the applicant, who had opted for the Italian
version, logically chose an answer considered incorrect and               Opposition      Division’s    Opposition upheld and appli-
did not choose that considered correct, unlike candidates who             decision:                     cation for registration rejected,
had opted for the other two language versions.                                                          limited to Class 33.
                                                                          Appeal Board’s decision:      Appeal dismissed.
 ---pagebreak--- C 59/36                EN                          Official Journal of the European Union                                           6.3.2004
Grounds of the appeal:          Wrong application of Article               Pleas in law and main arguments
                                8(1)(b) of Regulation (EC) No 40/
                                94 (likelihood of confusion), fail-
                                ure to state reasons and misuse            Applicants for the Com-       Friedrich Grimm and Engelbert
                                of powers by manifest error of             munity trade mark:            Rolli
                                assessment and inconsistency
                                with the Examiner’s decision of            Community trade mark          Community trade mark appli-
                                23 November 1999 regarding                 sought:                       cation No 847640 for word mark
                                partial rejection of the registration                                    SNIKE in relation to certain goods
                                of the mark concerned.                                                   in classes 12, 25 and 41 (Vehicles,
                                                                                                         clothing, footwear, headgear, edu-
                                                                                                         cation, entertainment,...)
                                                                           Proprietor of mark or         The applicant, Muswellbrook Ltd.
                                                                           sign cited in the oppo-
                                                                           sition proceedings:
Action brought on 9 January 2004 by Muswellbrook                           Mark or sign cited in         The national figurative mark No
Limited against the Office for Harmonisation in the                        opposition:                   88222 for certain goods in
    Internal Market (Trade Marks and Designs) (OHIM)                                                     class 25 (Stockings, socks, shirts,
                                                                                                         gloves, coats, footwear, sporting
                           (Case T-8/04)                                                                 footwear, ...)
                          (2004/C 59/57)                                   Decision of the Oppo-         Rejection of the opposition
                                                                           sition Division:
(Language of the case to be determined pursuant to article 131(2) of       Decision of the Board of      Dismissal of the appeal
the Rules of Procedure — language in which the case was submitted:         Appeal:
                              English)
                                                                           Pleas in law:                 Violation of Article 8 (1) (b) of
                                                                                                         Council Regulation (EC) No 40/
                                                                                                         941 (1)
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
                                                                           (1) Council Regulation (EC) No 40/94 of 20 December 1993 on the
9 January 2004 by Muswellbrook Limited, Dublin, Ireland,                       Community trade mark (OJ 11, p. 1).
represented by Ms P. Koch Moreno, lawyer. Friedrich Grimm
and Engelbert Rolli were also party to the proceedings before
the Board of Appeal.
The applicant claims that the Court should:
—     declare that the decision which was issued on 5 November
      2003 by the First Board of Appeal of OHIM, which                     Action brought on5 January 2004 by Carlos Leite Mateus
      dismissed the plaintiff’s appeal against the resolution of             against the Commission of the European Communities
      29 April 2002 in opposition procedure No B 1181/
      2002, which dismissed the opposition that was lodged
      against community trade mark application No 847640                                            (Case T-10/04)
      for the registration of the word SNIKE in relation to all
      the products of class 25 covered by the application, does
      not comply with the EC Regulations on Community                                               (2004/C 59/58)
      Trade Marks, No 40/94, and that the said decision be set
      aside;
                                                                                              (Language of the case: French)
—     declare that there is a risk of confusion between the
      community trade mark application with No 847640 for
      the word SNIKE in class 25 and Spanish trade mark
      No 88222, consisting of the word NIKE with device,                   An action against the Commission of the European Communi-
      which protects identical products that also fall under               ties was brought before the Court of First Instance of the
      class 25;                                                            European Communities on 5 January 2004 by Carlos Leite
                                                                           Mateus, residing in Zaventem (Belgium), represented by Sébas-
—     order the respondent and, if applicable, the intervening             tien Orlandi, Albert Coolen, Jean-Noël Louis and Étienne
      party to pay the costs of these proceedings.                         Marchal, lawyers, with an address for service in Luxembourg.