CELEX: C2002/031/31
Language: en
Date: 2002-02-02 00:00:00
Title: Removal from the Register of Case T-108/00

C 31/16                EN                     Official Journal of the European Communities                                         2.2.2002
—     failure by the Commission to take into account the fact            —     to order the OHIM to register the trademark ‘Nicole’ for
      that the applicant has fulfilled its obligations under the               goods of class 3 including essential oils, cosmetics, hair
      contract, whereas Clause 2(c) of the General Terms and                   lotions, dentifrices and nail polish.
      Conditions of the Contract expressly provides that a
      contractor is not to be liable for a contractor which does
      not fulfil its obligations if it can show that it has not          Pleas in law and main arguments
      contributed to such failure to fulfil obligations. In that
      regard, the defendant had overrated the obligations
      attaching to the project coordinator;                              Applicant for the Com-         OPI Products Inc.
                                                                         munity trade mark:
—     the defendant disregarded in the present case the duties           The Community trade            The verbal mark ‘Nicole’ for goods
      enshrined in Article 1375 of the Italian Civil Code so far         mark concerned:                in class 3.
      as concerns the principle of good faith and the protection
      of legitimate expectations.                                        Proprietor of the right to     Maxim Marken-Produkte GmbH
                                                                         the trade mark or sign         & Co. KG.
                                                                         asserted by way of oppo-
More generally, the applicant states that the object of the              sition in the opposition
contract in question is not for the supply of a piece of                 proceedings:
equipment or merely white goods, but of a thermal power
station whose technological characteristics should have proved           Trade mark or sign             The national verbal mark ‘Nicole’
to be something new and truly innovative. The applicant                  asserted by way of oppo-       for certain goods in class 3
therefore claims that the Commission’s conduct in the per-               sition in the opposition
formance of the contract should have been quite different to             proceedings:
that adopted, since the defendant was not in actual fact a party
to a synallagmatic contract, but a partner in the full sense of          Decision of the Oppo-          Partial rejection of the Oppo-
the word, sharing the contracting parties’ interest in developing        sition Division:               sition.
technology within the Member States.
                                                                         Decision of the Board of       Annulment of the Decision of the
                                                                         Appeal:                        Opposition Division for ‘dentrific-
                                                                                                        es’ in class 3 and dismissal of the
                                                                                                        further appeal by OPI Products
                                                                                                        Inc.
                                                                         Grounds of claim:              Violation of Article 43(2) of
Action brought on 23 November 2001 by OPI Products                                                      Council Regulation 40/94 in that
Inc. against the Office for Harmonisation in the Internal                                               the proof of the use of the mark
                              Market                                                                    asserted by way of opposition was
                                                                                                        insufficient. The applicant further
                                                                                                        claims a violation of article 8(1)b
                         (Case T-288/01)                                                                of Council Regulation 40/94 since
                                                                                                        there is no likelihood of confusion
                                                                                                        or similarity of goods.
                          (2002/C 31/30)
                   (Language of the case: English)
                                                                                Removal from the Register of Case T-108/00 (1)
An action against the Office for Harmonisation in the Internal
Market was brought before the Court of First Instance of the
European Communities on 23 November 2001 by OPI                                                    (2002/C 31/31)
Products Inc., represented by Mr Emmanuel Cornu and Mr Eric
De Gryse of Braun Bigwood SCRL, Brussels (Belgium).                                         (Language of the case: French)
A further party to the proceedings before the Board of Appeal
                                                                         By order of 12 September 2001, the President of the Third
was Maxim Marken-Produkte GmbH & Co. KG.
                                                                         Chamber of the Court of First Instance of the European
                                                                         Communities has ordered the removal from the Register of
The applicant claims that the Court should:                              Case T-108/00: Santiago Gómez-Reino v Commission of the
                                                                         European Communities.
—     annul the decision of the third Board of Appeal in so far
      as it denies registration of the contested CTM application         (1) OJ C 176 of 24.6.2000.
      No 737 510 for the word mark ‘Nicole’ for ‘essential oils,
      cosmetics, hair lotions; including nail polish’ in class 3;