Action brought on 17 May 2004 by MPS Group Inc., against the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM)

(Case T-178/04)

(2004/C 201/38)

Language of the case: English

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 17 May 2004 by MPS Group Inc., Jacksonville, Florida, USA represented by Ms K. O'Rourke and Mr P. Kavanagh Solicitors.

Modis-Distribuiçao Centralizada SA was also a party to the proceedings before the Board of Appeal.

The applicant claims that the Court should:

—

Annul the Decision of the Fourth Board of Appeal of 4 February 2004 insofar as it upheld Opposition number B000170599 with respect to the following services in class 35: ‘Employment agency services, recruitment consultancy services; payroll preparation services; time recording services; provision of temporary and permanent staff’;

—	in the alternative, annul the decision insofar as it covers the following services in class 35: ‘Employment agency services, recruitment consultancy services, provision of temporary and permanent staff’.

Pleas in law and main arguments:

Applicant for Community trade mark:	MPS Group Inc.
Community trade mark sought:	The Community trade mark application No 778795 ‘MODIS’ for services in class 35 (employment agency services, recruitment consultancy services, payroll preparation services,...), class 41 (staff training services) and class 42 (psychometric testing)
Proprietor of mark or sign cited in the opposition proceedings:	Modis Distribuiçao Centralizada SA
Mark or sign cited in opposition:	The Portuguese trade mark ‘MODIS’ for services in class 35 (Advertising, business management and business administration)
Decision of the Opposition Division:	Rejection of the Community trade mark application for classes 35 and 41 and admission of the application for class 42.
Decision of the Board of Appeal :	Annulment of the Decision of the Opposition Division as it upheld the opposition with respect to the services applied for in Class 41, remittal of the case for further prosecution to the examiner and rejection of the appeal for the remainder.
Pleas in law:	Violation of Articles 8(1)(a) and 8(1)(b)of Council Regulation No 40/94 on the Community Trade Mark (1) in deciding that the services concerned were similar.

(1) Council Regulation (EC) No 40/94 of 20 December 1993 on the Community trade mark (OJ 11, p. 1)