Case T-99/01: Action brought on 27 April 2001 by Mystery Drinks GmbH against the Office for Harmonisation in the Internal Market (Trade Marks and Designs)
Date: 2001-08-11
Institutions: Court of First Instance
Subjects: EU trade mark, European Union Intellectual Property Office, action for annulment (EU), beer

11.8.2001

EN

Official Journal of the European Communities

C 227/21

— the verbal element contained
in the trade mark applied for
is not in itself subject to any
absolute ground for refusal
— there is no ground for refusal
on the basis of a lack of dis-
tinctiveness.

Action brought on 27 April 2001 by Mystery Drinks
the Office for Harmonisation in the
GmbH against

Internal Market (Trade Marks and Designs)

(Case T-99/01)

(2001/C 227/42)

(1) Council Regulation (EC) No 40/94 of 20 December 1993 on the

Community trade mark (OJ 1994 L 11, p. 1).

Action brought on 30 April 2001 by A. Seisenbacher
Gesellschaft m.b.H. against the Commission of the Euro-
pean Communities

(Case T-93/01)

(2001/C 227/41)

the case:

(Language of
to be determined in accordance with
Article 131(2) of the Rules of Procedure. Language in which the
application was drafted: German)

An action against the Office for Harmonisation in the Internal
Market (Trade Marks and Designs) was brought before the
Court of First Instance of the European Communities on
27 April 2001 by Mystery Drinks GmbH, of Epperthausen
(Germany), represented by Dr Thomas Jestaedt, Dr Verena von
Bomhard and Dr Andreas Renck, lawyers. A further party
before the Board of Appeal was Karlsberg Brauerei KG Weber,
of Homburg (Germany).

The applicant claims that the Court should:

— annul the decision of Third Board of Appeal of the Office
for Harmonisation in the Internal Market (Trade Marks
and Designs) of 12 February 2001 (R 251/2000-3);

(Language of the case: German)

— order the defendant to pay the costs.

An action against the Commission of the European Communi-
ties was brought before the Court of First Instance of the
European Communities on 30 April 2001 by A. Seisenbacher
Gesellschaft m.b.H., represented by Dr Johannes Stieldorf,
Lawyer.

The applicant claims that the Court should:

— order the European Community to pay the applicant the
sum of ECU 59 694,44 together with interest at 13 %
from 20 October 1998 and the costs of the case.

Pleas in law and main arguments

Following an invitation to tender concerning the renovation
of the European Community building in Kiev, a contract was
concluded between Ost-Invest und Bauprojektmanagement
GmbH. and the Commission. On account of the financial
situation of that company, the applicant as general contractor
was to fulfil that contract vis-à-vis the Commission.

After the restored building had been handed over, the applicant
requested settlement of its final account of ECU 59 694,44.
Following investigations the applicant discovered that payment
of ECU 55 000,00 had been made to another company, a fact
which is, however, immaterial to the relationship between the
applicant and the defendant. The applicant brings an action
pursuant to Article 238 EC and demands payment of the final
account.

Pleas in law and main arguments

Applicant for the Com-
munity trade mark:

the applicant

Community trade mark
applied for:

Proprietor of the right
to a trade mark or sign
asserted in the oppo-
sition proceedings:

Right to a trade mark or
sign asserted:

Decision of the Oppo-
sition Division:

Decision of the Board of
Appeal:

the figurative mark ‘MYSTERY’ for
goods in Classes 29 and 30 and
‘non-alcoholic drinks with the
exception of non-alcoholic beer’
in Class 32.

Karlsberg Brauerei KG Weber

the word mark ‘MIXERY’ for ‘beer
and drinks containing beer’
in
Class 32

dismissal of the opposition

cancellation of the decision of the
Opposition Division,
in so far
as the likelihood of confusion
between the opposing mark and
goods in Class 32, namely ‘non-
alcoholic drinks with the excep-
tion
beer’,
referred to in the application was
denied, and dismissal of
the
appeal as to the remainder.

non-alcoholic

of

C 227/22

EN

Official Journal of the European Communities

11.8.2001

Grounds of claim:

— Misapplication

of Article
8(1)(b) of Regulation (EC)
No 40/94 (1)
(likelihood of
confusion)

different

— the opposing signs are sub-
stantially
typo-
graphically, conceptually and
in their sound, and the rel-
evant goods are dissimilar.

the applicant was allocated a post which in her view is
considerably less important and offers considerably fewer
the
promotion prospects. According to the applicant,
principles laid down in Article 141 EC had been implemented
in due time and in full, she ought to have obtained the post of
principal departmental manager for ‘Personnel and Adminis-
tration’. She submits that she has thereby suffered substantial
material and non-material harm and that, in her case, her
employer has since 1994 committed all breaches of fundamen-
tal and human rights, without legal consequences, on the basis
of the employer’s ‘organisational freedom’.

if

(1) Council Regulation (EC) No 40/94 of 20 December 1993 on the

Community trade mark (OJ 1994 L 11, p. 1).

She contends that, when requests are made before national
courts for an order for reference under Article 234 EC, a
hearing in accordance with the law is refused. All the judicial
proceedings brought by the applicant in respect of European
fundamental rights have terminated at first instance since leave
to appeal has likewise been refused. Her constitutional appeals
have not been accepted for determination, without any reasons
being given. In the applicant’s submission, there has been no
review of the breaches of fundamental rights arising from the
Treaty on European Union and the Charter of Fundamental
Rights of the European Union.

The applicant contends that the material legal provisions in
the Federal Republic of Germany require proof of individual
fault on the part of the civil servant acting as a precondition for
claims for damages against public authorities. Compensation is
therefore not payable to civil servants without proof of special
damage in the case of breaches of fundamental rights arising
from the Treaty on European Union.

She relies on Articles 5 and 6 of the Treaty on European
Union, in conjunction with the Social Charter and the Charter
of Fundamental Rights, and on provisions of Council Directive
75/117, and submits that the Commission has not complied
with its obligation to monitor implementation of Union law
and of respect for human rights and fundamental freedoms in
national German law. The Commission did not act when called
on to do so by the applicant pursuant to Article 232 EC and
has not responded to the substance of her complaint.

She pleads various situations as examples of infringements of
fundamental rights and discrimination at the workplace, as
well as of discrimination against women.

Action brought on 13 April 2001 by Karola Gluiber
against the Commission of the European Communities

(Case T-100/01)

(2001/C 227/43)

(Language of the Case: German)

An action against the Commission of the European Communi-
ties was brought before the Court of First Instance of the
European Communities on 13 April 2001 by Karola Gluiber,
Osterhofen (Germany), represented by Christoph Blecken-
wegner, Lawyer.

The applicant claims that the Court should:

— declare that the Commission has failed to act pursuant to
the second and third paragraphs of the EC Treaty, in
conjunction with the third paragraph of Article 232 of
the Treaty of Amsterdam, by supervising incorrectly the
implementation and application of European legal rules
into German national law;

— declare that the Commission has failed to define its
position on the substance of her call on it to act pursuant
to the second paragraph of Article 175 of the Treaty, in
conjunction with the third paragraph of Article 232 of
the Treaty of Amsterdam;

— order the defendant to pay the costs.

Pleas in law and main arguments

The applicant has worked since 1986 as a federal civil servant
in the Straßenneubauamt (New Highway Construction Office)
Bad Kreuznach in the service of the Land Rheinland-Pfalz. In
1994 that office was amalgamated with the Straßenneubauver-
waltung (New Highway Construction Administration) Bad
Kreuznach and, on the allocation of posts in the new office,