CELEX: C2002/202/58
Language: en
Date: 2002-08-24 00:00:00
Title: Case T-190/02: Action brought on 17 June 2002 by Anita Jannice Österholm against Commission of the European Communities

24.8.2002             EN                        Official Journal of the European Communities                                       C 202/35
Incorrect application of       likelihood of confusion exists              Mark invoked in the           International mark No 516269
Article 8(1)(b) of Regu-       because of the undisputed identity          opposition proceedings:       ‘Roberto’ for goods in Classes 29
lation No 40/94:               or, at least, similarity of the goods,                                    and 30 and the opponent’s trading
                               the visual and phonetic similarity                                        name ‘ROBERTO’
                               of the marks and the inherent
                               distinctiveness of the mark cited           Decision of the oppo-         Dismissal of the opposition
                               in opposition.                              sition division:
                                                                           Decision of the Board of      Annulment of the decision of the
                                                                           Appeal:                       opposition division and remittal
                                                                                                         of the application
                                                                           Pleas in law relied on:       —     Infringement of Rule 16 of
                                                                                                               Regulation (EC) No 2868/
                                                                                                               95 (1);
Action brought on 17 June 2002 by Freiberger Lebensmit-
tel GmbH & Co. Produktions- und Vertriebs KG against                                                     —     Infringement               of
the Office for Harmonisation in the Internal Market                                                            Article 42(1), in conjunction
                  (Trade Marks and Designs)                                                                    with Article 8(2) and (4),
                                                                                                               of Regulation (EC) No 40/
                                                                                                               94 (2).
                        (Case T-188/02)
                        (2002/C 202/57)                                    (1) Commission Regulation (EC) No 2868/95 of 13 December
                                                                               1995 implementing Council Regulation (EC) No 40/94 on the
                                                                               Community trade mark (OJ 1995 L 303, p. 1).
(Language of the case to be determined in accordance with                  (2) Council Regulation (EC) No 40/94 of 20 December 1993 on the
Article 131(2) of the Rules of Procedure Language in which the                 Community trade mark (OJ 1994 L 11, p. 1).
                  application was made: German)
An action against the Office for Harmonisation in the Internal
Market (Trade Marks and Designs) was brought before the
Court of First Instance of the European Communities on
17 June 2002 by Freiberger Lebensmittel GmbH & Co.
Produktions- und Vertriebs KG, of Berlin, Germany, represent-              Action brought on 17 June 2002 by Anita Jannice Öster-
ed by K.-D. Rathke. Roberto S.A. of Chevilly, France, was an                holm against Commission of the European Communities
additional party before the Board of Appeal.
                                                                                                    (Case T-190/02)
The applicant claims that the Court should:
                                                                                                    (2002/C 202/58)
—     annul the decision of the Fourth Board of Appeal of the
      Office for Harmonisation in the Internal Market of                                      (Language of the case: French)
      28.2.2002 in Case R 1155/2000-4;
—     order the opponent to pay the costs.
                                                                           An action against the Commission of the European Communi-
                                                                           ties was brought before the Court of First Instance of the
                                                                           European Communities on 17 June 2002 by Anita Jannice
Pleas in law and main arguments                                            Österholm, residing in Stockholm, represented by Juan Ramon
                                                                           Iturriagagoitia Bassas, lawyer.
Applicant for the Com-         The applicant
munity trade mark:                                                         The applicant claims that the Court should:
Trade mark applied for:        Word mark ‘Alberto’ for goods in            —     annul the decision of the appointing authority of
                               Classes 29 and 30 — Application                   11 March 2002 replying to complaint No 389/01 lodged
                               No 26211                                          by J. Österholm;
Proprietor of the trade        Roberto S.A.                                —     annul in part the decision of the Directorate General for
mark right invoked in                                                            Personnel and Administration of the European Com-
the opposition proceed-                                                          mission of 2 July 2001 concerning the computation of
ings:                                                                            annual leave between 8 and 31 July 2000;
 ---pagebreak--- C 202/36              EN                      Official Journal of the European Communities                                      24.8.2002
—     convert the period between 8 and 31 July 2000 into sick            Decision of the Exam-         refusal of the application
      leave;                                                             iner:
—     order the defendant to pay the costs.                              Decision of the Board of      rejection of the appeal
                                                                         Appeal:
Pleas in law and main arguments                                          Grounds of claim:             Violation of article 7(1) (b) of
                                                                                                       Regulation 40/94 (1). The appli-
                                                                                                       cant claims the mark is distinctive.
When the applicant submitted a medical certificate attesting
that she was unable to work for one month, she pointed out
to the Commission that she wished to use that certificate to             (1) Council Regulation (EC) No 40/94 of 20 December 1993 on the
justify one week’s sick leave and asked that the remainder be                Community trade mark (OJ L 11, p. 1).
regarded as annual leave. The applicant subsequently asked
that the whole of the period be regarded as annual leave and
not set against her annual leave allowance.
In support of her application, the applicant alleges infringe-
ment of Article 59 of the Staff Regulations, erroneous assess-
ment of the facts, misuse of powers, failure to provide reasons          Action brought on 24 June 2002 by Michel Van Beek
and breach of the rights of the defence as well as breach of the             against Commission of the European Communities
principles of sound administration and of the duty to have
regard to the welfare of officials.
                                                                                                  (Case T-199/02)
                                                                                                  (2002/C 202/60)
                                                                                            (Language of the case: French)
Action brought on 21 June 2002 by G.D. Searle LLC
against the Office for Harmonisation in the Internal
                             Market                                      An action against the Commission of the European Communi-
                                                                         ties was brought before the Court of First Instance of the
                        (Case T-192/02)                                  European Communities on 24 June 2002 by Michel Van Beek,
                                                                         residing in Brussels, represented by Albert Coolen, Jean-Noël
                        (2002/C 202/59)                                  Louis and Etienne Marchal, lawyers.
                  (Language of the case: English)                        The applicant claims that the Court should:
                                                                         —     annul the decision of the Commission not to promote
An action against the Office for Harmonisation in the Internal                 him to Grade A 4 in the 2001 promotions procedure;
Market was brought before the Court of First Instance of the
European Communities on 21 June 2002 by G.D. Searle LLC,                 —     order the defendant to pay the costs.
represented by Graham Farrington, Solicitor,
The applicant claims that the Court should:                              Pleas in law and main arguments
—     annul the decision of the defendant’s Third Board of
      Appeal of 10 April 2002;                                           The applicant in the present action, an official in Grade A 5,
                                                                         challenges the appointing authority’s refusal to promote him
—     order the defendant to remit the application to its                to Grade A 4 in the 2001 promotions procedure.
      Examination Division for re-examination of Community
      Trade Mark number 1299833.
                                                                         In support of his arguments, the applicant alleges:
Pleas in law and main arguments                                          —     breach of the duty to state reasons;
                                                                         —     infringement of Article 45 of the Staff Regulations and
The Community trade           The figurative mark with trade                   breach of the principle of equal treatment, of the principle
mark concerned:               mark        application      number              that officials should have reasonable career prospects
                              1299833.                                         and of the principles of good management and sound
                                                                               administration.
Goods and services:           Certain goods classified in class 5:
                              pharmaceuticals in the nature of
                              anti-inflammatory analgesics.