CELEX: C2004/047/66
Language: en
Date: 2004-02-21 00:00:00
Title: Case T-420/03: Action brought on 17 December 2003 by El Corte Inglés against the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM)

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:
 ---pagebreak--- 21.2.2004            EN                          Official Journal of the European Union                                            C 47/35
Decision of the Board of     Action dismissed.                           —     order the Commission to pay all costs and expenses in
Appeal:                                                                        these proceedings.
Pleas in law:                Infringement of Article 8(1)(b),
                             (2)(c) and (5) of Regulation (EC)
                             No 40/94.
                                                                         Pleas in law and main arguments
                                                                         The applicants seek the annulment of the Commission’s
                                                                         decisions rejecting the applicants’ request not to classify
                                                                         n-propyl bromide as a highly flammable substance (risk
                                                                         phrase R11) and reproductive toxicant category 2 (risk
                                                                         phrase R60) , but instead to classify it as a category 3/R62
                                                                         substance for reproductive toxicity and R18 substance for
Action brought on 23 December 2003 by Enviro Tech                        flammability. In the alternative, the applicants requested
Europe, Ltd., and Enviro Tech International Inc. against                 the Commission to exclude n-propyl bromide from the
      the Commission of the European Communities                         29th Adaptation to Technical Progress of Directive 67/548/
                                                                         EEC (1) until a proper and complete assessment of all the
                                                                         scientific data had been made by the Commission.
                       (Case T-422/03)
                        (2004/C 47/67)                                   In support of their application, the applicants claim that the
                                                                         Commission has violated the provision of Directive 67/
                                                                         548/EEC concerning the applicable testing methods and
                                                                         classification criteria for chemical substances. According to the
                 (Language of the case: English)                         applicant, the Commission has made a manifest error of
                                                                         assessment and an incorrect application of the testing methods
                                                                         for physico-chemical properties set forth in annex V, point A.9
                                                                         of Directive 67/548/EEC, the classification criteria for toxico-
                                                                         logical properties set forth in annex VI, point 4.2.3 of Directive
                                                                         67/548/EEC and the criterion of normal handling or use set
An action against the Commission of the European Communi-                forth in annex VI, point 1.1 of Directive 67/548/EEC.
ties was brought before the Court of First Instance of the
European Communities on 23 December 2003 by Enviro Tech
Europe Ltd., Kingston-upon-Thames, United Kingdom and
Enviro tech International, Inc., Chicago, USA, represented by
Mr C. Mereu and Mr K. Van Maldegem, lawyers.                             The applicants also claim that the Commission has violated
                                                                         the applicants’ legitimate expectations that the Commission
                                                                         would assess the data submitted by the applicants in accord-
                                                                         ance with their obligations under Directive 67/548/EEC,
                                                                         diligently, impartially and by relevance to the relevant criteria
The applicant claims that the Court should:
                                                                         of Directive 67/548/EEC.
—    annul Commission Decisions D(2003) 430307 and
     D(2003) 430309 of 4 November 2003;
                                                                         The applicants invoke furthermore a violation of Article 95(3)
                                                                         EC Treaty. According to the applicants, the Commission failed
—    declare the Commission liable for damages suffered by               to consider and assess all the scientific data available as well as
     applicants to date and pending these proceedings as a               new developments based on scientific facts.
     result of the Commission’s unlawful conduct, including
     but not limited to its denial of applicant’s request
     and related adoption of the contested decision, and to
     compensate applicants for such damage in the provisional
     amount of EUR 350 000;                                              The applicants state that the contested decisions are based on
                                                                         the precautionary principle. According to the applicants, this
                                                                         principle only applies to risk assessment and cannot be used
—    declare the Commission liable for imminent losses and               in hazard assessments. Also, even if the principle should apply
     damages foreseeable with sufficient certainty, even if such         in this case, this would only be possible in the case of scientific
     losses and damages cannot be precisely assessed;                    uncertainty.