Case T-91/01: Action brought on 23 April 2001 by BioID AG 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)

C 227/20

EN

Official Journal of the European Communities

11.8.2001

Action brought on 23 April 2001 by Christine Janusch
against the European Central Bank

Action brought on 23 April 2001 by BioID AG against
the Office for Harmonisation in the Internal Market
(Trade Marks and Designs)

(Case T-90/01)

(2001/C 227/39)

(Language of the case: German)

An action against the European Central Bank was brought
before the Court of First Instance of the European Communities
on 23 April 2001 by Christine Janusch, residing in Dreieich
(Germany), represented by Boris Karthaus, Rechtsanwalt, with
an address for service in Luxembourg.

The applicant claims that the Court should:

— annul the decision of the defendant addressed to the

applicant of 5 February 2001;

— order the defendant to make a number of payments plus

interest to the applicant;

— order the defendant to pay the costs.

Pleas in law and main arguments

The applicant was employed by the defendant from July 1998
and assigned to salary band C. In August 2000, she applied for
confirmation of her classification and of assignment to salary
band D, with retrospective effect from 1 January 2000. She
left her employment with the defendant in September 2000.

On 28 November 2000, the Executive Board of the defendant
decided to carry out a reclassification of certain posts, whereby
the applicant’s post of ‘Administrative Assistant in the Protocol
and Conferences Division’ was assigned to salary band D as
‘Meeting and Conference Assistant’.

By a letter of 5 February 2001, the defendant decided that,
although the applicant’s post as ‘Meeting and Conference
Assistant’ had been assigned to salary band D, the defendant
was not in a position to make the applicant’s new classification
in salary band D retrospective, as the Executive Board had
decided not to apply the decision of 28 November 2000
retrospectively to employees who had left the defendant in the
meantime.

The applicant makes three pleas in law against the decision,
namely that it was not sufficiently reasoned, infringed the
general principle of equal treatment, and was contrary to the
principles of good faith and fair dealing.

(Case T-91/01)

(2001/C 227/40)

(Language of the case: 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
23 April 2001 by BioID AG, of Berlin (Germany), represented
by Axel Nordemann, Lawyer.

The applicant claims that the Court should:

— annul the decision of the Second Board of Appeal of the
Office for Harmonisation in the Internal Market (Trade
Marks and Designs) of 20 February 2001 (Appeal
R 538/1999-2) and the decision of the examiner Robert
Kliyn Brinkema of the Office for Harmonisation in the
Internal Market (Trade Marks and Designs) of 25 June
1999 (concerning application file number 873943);

— order the defendant to admit for publication trade mark

873943, logo: BioID.®

— order the defendant to pay the costs.

Pleas in law and main arguments

Applicant for the Com-
munity trade mark:

BioID AG (formerly D.C.S. Dialog
Communication Systems AG)

The trade mark applied
for:

the word mark and figurative
mark BioID.®

Goods or services con-
cerned:

goods and services in Classes 9,
38 and 42

Decision
before
Appeal:

contested
the Board of

refusal of
examiner

registration by the

Decision of the Board of
Appeal:

Grounds of claim:

dismissal of the applicant’s appeal

— misapplication

of Article
7(1)(c) of Regulation (EC)
No 40/94 (1)

— the trade mark applied for
is, simply on account of its
graphic configuration, not a
descriptive indication and it
has distinctive and indepen-
dent graphics

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