Case T-63/01: Action brought on 16 March 2001 by The Procter & Gamble Company against the Office for Harmonization in the Internal Market
Date: 2001-05-05
Institutions: Court of First Instance
Subjects: European Union Intellectual Property Office, action for annulment (EU), infringement of EU law, toiletries, trade mark, trade-mark law

5.5.2001

EN

Official Journal of the European Communities

C 134/29

The Commission objects, in particular, to the inclusion in the
area reserved to the incumbent operator of a guaranteed day-
or time-certain delivery service for time-sensitive electronic
correspondence.

— the principles and rules have not be observed regarding
protection of services of general economic interest and in
particular of universal services. The applicant points out,
in that respect, the particularly high costs of the universal
postal system in Italy as well as the destabilising effect of
the decision in question on the financial equilibrium of
the provider of the universal service.

In support of its arguments, the applicant claims that:

(1) OJ 1998 L 15, p. 14.

— in the final decision the Commission altered substantially
essential elements of the infringement complained of
originally consisting in particular in: the definition of the
relevant market and the legal classification and assessment
of the infringement at issue. In this regard, the applicant
takes the view that, in the final decision the Commission
does not further identify the relevant market on the basis
of a number of bundled services which, taken as a
whole, confer on the service significant added-value by
comparison with basic postal services. Rather, on the
contrary, the Commission merely points to a single
additional service (the date- and time-certain delivery of
time-sensitive electronic mail) as a factor capable by itself
of characterising a discrete relevant market.

— the Commission has not allowed either the applicant or
the Italian authorities to make their own points of view
effectively known. Furthermore, despite a finding by
the Commission originally that Directive 97/67/EC was
essential for the legal assessment of the facts, that directive
is not even cited in the final decision. In that respect, the
applicant affirms that the interpretation of the directive is
essential in order to decide whether the decree in issue is
compatible.
the Commission had assessed
properly the decree in issue in the light of Directive
97/67/EC,
it would have concluded that the disputed
national provisions were fully consistent with the content
and purpose of the directive itself.

Indeed,

if

— the definition of the relevant market is vague and general
inasmuch as it merely describes the service involved
in general terms such as, basically, the time-certainty
(date/time) of the service and the fact that the deadline
for each delivery is subject to a contractual relationship
with the user. The definition of the relevant market is not
even founded in the light of the relevant economic
circumstances and practice of the Commission. Moreover,
it has omitted to take into consideration the prices
charged to customers.

Action brought on 16 March 2001 by The Procter &
Gamble Company against the Office for Harmonization
in the Internal Market

(Case T-63/01)

(2001/C 134/61)

(Language of the case: French)

An action against the Office for Harmonization in the Internal
Market was brought before the Court of First Instance on
16 March 2001 by The Procter & Gamble Company, estab-
lished in Cincinnati (United States of America), represented by
Thierry van Innis,
lawyer, with an address for service in
Luxembourg.

The applicant claims that the Court should:

— annul the Board of Appeal’s decision of 14 December

2001;

— order the Office to pay all the costs.

Pleas in law and main arguments

The action is directed against the decision of the Office’s Third
Board of Appeal, dated 14 December 2000 (Case R 74/1998-
3), rejecting the applicant’s appeal against the decision of
18 March 1998 whereby the examiner refused registration of
the Community trade mark applied for under number 230680
on the absolute ground referred to in Article 7(1)(e)(i) of
Regulation No 40/94 on the Community trade mark.

— there is no abuse of a dominant position, so that the
Commission is mistaken in its hypothesis that Poste
Italiane has extended its position in the market with
respect to conventional deliveries into the neighbouring
but distinct market for day- or time-certain deliveries of
time-sensitive items.

Attention is drawn in this regard to the fact that, by decision
of 15 March 1998, the same Board of Appeal rejected an
application for registration in respect of the same mark. That
decision was annulled by the judgment delivered by the Court
of First Instance on 16 February 2000 in Case T-122/99

C 134/30

EN

Official Journal of the European Communities

5.5.2001

Procter & Gamble Company v OHIM [2000] ECR II-265.
Following delivery of that judgment, the examiner requested
the applicant to submit further observations.

However, in the concluding part of the contested decision,
when dealing with the merits of the refusal to effect the
registration applied for, the Board of Appeal did not uphold
the absolute ground regarded as valid by the examiner; instead,
it considered that another absolute ground, namely that
provided for in Article 7(1)(b),
justified the refusal of the
application for registration.

Before adopting its decision, the Board of Appeal requested
the applicant to submit its observations on that other ground.

In support of its claims, the applicant asserts that the Board of
Appeal has infringed Article 7(1)(b) of Regulation No 40/94
and has violated the right to a fair hearing, inasmuch as the
contested decision was taken by the same persons as those
who, in their capacity as members of the Third Board of
Appeal, issued a decision on the substance of the matter on
15 March 1999, relating to the same parties,
the same
application for registration and the same absolute ground.