CELEX: C2004/047/65
Language: en
Date: 2004-02-21 00:00:00
Title: Case T-418/03: Action brought on 22 December 2003 by La Mer Technology, Inc. against the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM)

21.2.2004               EN                          Official Journal of the European Union                                              C 47/33
The applicants claim that the Court of First Instance should:               the permitted anchovy catches in ICES zone VIII initially
                                                                            assigned to them, contravenes both the principle of relative
                                                                            stability and the Act of Accession (Article 161(1)(f)). Thus, the
—     Declare that the Community has incurred non-contrac-                  Council also acted in breach of the principle of legal certainty,
      tual liability by making a deduction from the percentage              infringing upon the legitimate expectations of the economic
      of the Total Allowable Catch of anchovies to which Spain              agents involved.
      and the fleet authorised to fish for anchovies in ICES
      zone VIII are entitled in the years 1996 to 2001, by
      transferring Portugal’s quota in ICES zone IX for it to be            The applicants also allege that the Council has misused its
      fished by France in ICES zone VIII;                                   powers.
—     Compel the Community, represented by the Council, to
      compensate the applicants for the real and certain harm
      suffered as a result of the acts of the Council, comprising
      both consequential damage and loss of profits, in the
      terms set out in the present application and its annexes;
                                                                            Action brought on 22 December 2003 by La Mer Tech-
                                                                            nology, Inc. against the Office for Harmonisation in the
—     Order the Community, represented by the Council, to                       Internal Market (Trade Marks and Designs) (OHIM)
      pay all the costs incurred by the applicants in the context
      of the present proceedings.
                                                                                                     (Case T-418/03)
                                                                                                      (2004/C 47/65)
Pleas in law and main arguments                                             (Language of the case to be determined pursuant to article 131(2) of
                                                                            the Rules of Procedure — language in which the case was submitted:
                                                                                                          English)
The purpose of the present action is to seek compensation for
the damage suffered by the applicants as a result of the removal
between 1996 and 2001 of part of the Total Allowable Catch                  An action against the Office for Harmonisation in the Internal
(TAC) of anchovies to which Spain is entitled in ICES                       Market (Trade Marks and Designs) (OHIM) was brought before
(International Council for the Exploration of the Sea) zone VIII,           the Court of First Instance of the European Communities on
following the authorisation granted by the Council of the                   22 December 2003 by La Mer Technology, Inc., New York,
European Union for the transfer of Portugal’s quota in ICES                 USA, represented by Dr V. v. Bomhard, Dr A. Renck and Dr
zone IX for it to be fished by France in zone ICES VIII.                    A. Pohlmann, lawyers. Laboratoires Goëmar was also a party
                                                                            to the proceedings before the Board of Appeal.
In support of their claims, the applicants submit that the                  The applicant claims that the Court should:
alleged illegality fulfils all the requirements laid down by the
case-law to give rise to non-contractual liability on the part of           1.    annul the Decision of the second Board of Appeal of the
the Community.                                                                    office for Harmonisation in the Internal market (Trade
                                                                                  Marks and Designs) of 23 October 2003 in case R 814/
                                                                                  2000-2;
As regards the condition concerning a sufficiently serious                  2.    order that the costs of the proceedings be borne by the
breach of a superior rule of law, they refer to contravention of
                                                                                  defendant.
the principles of relative stability, legal certainty and protection
of legitimate expectations.
                                                                            Pleas in law and main arguments
They state, in particular, that the principle of relative stability
serves to guarantee compliance with the quota allocated to                  Applicant for the Com-          La Mer Technology, Inc.
Spain in the Act of Accession, according to which Spain is                  munity trade mark:
entitled to 90 percent and France to 10 percent of anchovy
catches in ICES zone VIII. Accordingly, the quota swaps                     The Community trade             The word mark ‘La Mer’ for goods
provided for in Article 8 (4) (ii) of Regulation No 3760/92 and             mark sought:                    in class 3 (in addition to other
Article 9 (1) thereof must be carried out without changing the                                              things, soaps for the care of
overall balance of percentages laid down in the Act of                                                      human skin and the human body;
Accession. Consequently, the contested authorisation of swaps,                                              perfumery, essential oils, cos-
the result of which is to deprive Spain and the Spanish fleet of                                            metics, hair lotions)
 ---pagebreak--- C 47/34               EN                          Official Journal of the European Union                                          21.2.2004
Proprietor of mark or         Laboratoires Goëmar                         —     refuse to allow registration of the Community trade mark
sign cited in the oppo-                                                         No 1.160.050 ‘BOOMERANG TV’ in Class 41, and
sition proceedings:
Mark or sign cited in         The national and international              —     order the other party or parties opposing this action to
opposition:                   word marks ‘Laboratoires de la                    pay the costs.
                              mer’ for goods in classes 3, 5,
                              29 and 31 (in addition to other
                              things, cosmetics of a marine
                              products base)
Decision of the Oppo-         The opposition was upheld and
sition Division:              the application for registration            Pleas in law and main arguments
                              rejected in its entirety
Decision of the Board of      Dismissal of the appeal brought
Appeal:                       by La Mer Technology                        Applicant for Com-             José Matías Abril Sánchez and
                                                                          munity trade mark:             Pedro Ricote Saugar
Pleas in law:                 Violation of Article 43(2) and (3)
                              of Council regulation 40/94 (1)
                              and violation of Article 8(1) (b) of        Community trade mark           Figurative mark ‘BOOMERANG
                              Council Regulation 40/94.                   sought:                        TV’, with a semi-ellipse superim-
                                                                                                         posed         —         Application
                                                                                                         No 1.160.050 in respect of ser-
(1) Council Regulation (EC) No 40/94 of 20 December 1993 on the                                          vices included in Classes 38
    Community trade mark (OJ 11, p. 1).                                                                  and 41, although during the
                                                                                                         opposition proceedings the party
                                                                                                         applying for registration reduced
                                                                                                         the ambit of protection for the
                                                                                                         mark, excluding Class 38.
                                                                          Proprietor of mark or          Applicant.
Action brought on 17 December 2003 by El Corte Inglés                     sign cited in the oppo-
against the Office for Harmonisation in the Internal                      sition proceedings:
         Market (Trade Marks and Designs) (OHIM)
                                                                          Mark or sign cited in          Spanish figurative marks Nos
                         (Case T-420/03)                                  opposition.                    2035514, 2163613, 2163616,
                                                                                                         2035507, 2035508, 2035505,
                                                                                                         2035509, 2035510, 2035511,
                          (2004/C 47/66)                                                                 2035512 and 2035513 (the word
                                                                                                         ‘BOOMERANG’ framed in a dia-
                  (Language of the case: Spanish)                                                        mond), 1236024, 1236025 and
                                                                                                         1282250, Irish mark No 153228,
                                                                                                         Greek mark No 109387 and
                                                                                                         Community          trade      mark
                                                                                                         No 448514 (the word ‘BOOMER-
An action against the Office for Harmonisation in the Internal                                           ANG’ under a square containing
Market (Trade Marks and Designs) was brought before the                                                  the letter B next to a boomerang),
Court of First Instance of the European Communities on                                                   Spanish word mark ‘BOOMER-
17 December 2003 by El Corte Inglés S.A., established in                                                 ANG’ No 456466, Spanish figu-
Madrid, represented by Juan Luis Rivas Zurdo and Emilio                                                  rative marks ‘BOOMERANG La
López Leiva, lawyers.                                                                                    base del deporte’ (No 2227731,
                                                                                                         2227732 and 2227734) and
                                                                                                         English       figurative      mark
The applicant claims that the Court should:                                                              No 1494568 (small square
                                                                                                         enclosing the letter B next to a
—     annul the OHIM (Second Board of Appeal)’s decision of                                              boomerang), in respect of prod-
      1 October 2003 given in Case R088/2003-2, inasmuch                                                 ucts in Classes 18, 25, 38 and 41.
      as, by dismissing the appeal brought by the present
      applicant, it gives grounds for a future grant of Com-
      munity trade mark No 1.160.050 BOOMERANG TV in                      Decision of the Oppo-          Opposition rejected.
      Class 41;                                                           sition Division: