Judgment — ECLI:EU:T:2001:189
Date: 2001-07-12
Language of the case: Dutch
Court formation: Fourth Chamber, Extended Composition
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Trade marks;Principles, objectives and tasks of the Treaties;Intellectual, industrial and commercial property
Concepts: General;Actions before the Community Courts;Languages
Procedure: Action for annulment - unfounded
Origin: Netherlands

Summary of the Judgment 
1. Community trade mark — Appeals procedure — Appeals before the Community 
judicature — Actions for annulment — Plea of illegality — Collateral nature — 
Whether permissible 
(Art. 241 EC; Council Regulation No 40/94, Art. 63(2)) 
II - 2235 
SUMMARY — CASE T-120/99 
2. European Community — Language regime — Regulation No 1 
(EC Treaty, Art. 217 (now Art. 290 EC); Council Regulation No 1) 
3. Community trade mark — Languages of the Office — Obligation on the applicant 
for registration of a Community trade mark, to indicate a 'second language' as a 
possible language of procedure in opposition, revocation and invalidity proceedings — 
Infringement of the principle of non-discrimination — None 
(Council Regulation No 40/94, Art. 115(3); Commission Regulation No 2868/95, 
Art. 1, Rule 1(1)0)) 
1. The fact that Regulation No 40/94 on 
the Community trade mark does not 
expressly mention the plea of illegality 
as a collateral legal remedy which 
persons bringing actions may use 
before the Court of First Instance when 
seeking the annulment or alteration of 
a decision of a Board of Appeal of the 
Office for Harmonisation in the Inter­
nal Market (Trade Marks and Designs) 
does not mean that they cannot raise 
such a plea in those actions. That right 
follows from the general principle laid 
down by Article 241 EC. 
(see para. 21) 
2. Council Regulation N o 1 determining 
the languages to be used by the Eur­
opean Economic Community is merely 
an act of secondary law, whose legal 
base is Article 217 of the Treaty (now 
Article 290 EC). To claim that that 
regulation sets out a specific Commu­
nity law principle of equality between 
languages, which may not be derogated 
from even by a subsequent regulation 
of the Council, is tantamount to dis­
regarding its character as secondary 
law. Further, the Member States did not 
lay down rules governing languages in 
the Treaty for the institutions and 
bodies of the Community; rather, Arti­
cle 217 of the Treaty enables the 
Council, acting unanimously, to define 
and amend the rules governing the 
languages of the institutions and to 
establish different language rules. That 
Article does not provide that once the 
Council has established such rules they 
cannot subsequently be altered. It fol­
lows that the rules governing languages 
laid down by Regulation N o 1 cannot 
be deemed to amount to a principle of 
Community law. 
(see para. 58) 
3. The obligation on an applicant for 
registration of a Community trade 
mark under Article 115(3) of Regula­
tion N o 40/94 on the Community 
trade mark and Rule 1(1)(j) of Article 1 
of Regulation No 2868/95 implement­
ing Regulation N o 40/94 to 'indicate a 
II - 2236 
KIK v OHIM 
second language which shall be a 
language of the Office the use of which 
he accepts as a possible language of 
proceedings for opposition, revocation 
or invalidity proceedings', does not 
involve an infringement of the principle 
of non-discrimination. 
As is apparent from the actual wording 
of Ar t ic le 115(3) of Regu la t i on 
No 40/94, by indicating a second lan­
guage, the applicant accepts use of that 
language as a language of proceedings 
only in relation to opposition, revoca­
tion or invalidity proceedings. It fol­
lows that, so long as the applicant is 
the sole party to proceedings before the 
Office, the language used for filing the 
application for registration remains the 
language of proceedings. Consequently, 
in such p roceed ings , Regula t ion 
No 40/94 cannot be taken, in itself, as 
implying differentiated treatment as 
regards language, given that it in fact 
guarantees use of the language of the 
application filed as the language of 
proceedings and thus the language in 
which procedural documents of a deci­
sional character must be drafted. 
In pursuing the objective of determin­
ing the language of the proceedings 
where parties who do not share the 
same language preference fail to agree, 
the Council must be considered to have 
made an appropriate and proportion­
ate choice, even if the official languages 
of the Community were treated differ­
ently. First of all, Article 115(3) of 
Regulat ion N o 40/94 accords the 
applicant for registration of a trade 
mark an opportunity to fix, from 
among the most widely known lan­
guages in the European Community, 
the language that is to be used for 
opposition, revocation or invalidity 
proceedings in the event that the first 
language chosen by the applicant is not 
that requested by another party to the 
proceedings. Secondly, by limiting that 
choice to the languages which arc the 
most widely known in the European 
Community, and thus avoiding the 
possibility of the language of proceed­
ings being particularly remote in rela­
tion to the linguistic knowledge of the 
other party to the proceedings, the 
Council remained within the limits of 
what is necessary for achieving the aim 
in view. 
(see paras 60-61, 63) 
II - 2237