Case T-156/01: Action brought on 9 July 2001 by Laboratorios R.T.B., S.L. against Office for the Harmonization of the Internal Market (trade marks and designs) (OHIM)
Date: 2001-09-15
Institutions: Court of First Instance
Subjects: European Union Intellectual Property Office, Spain, action for annulment (EU), trade mark

C 259/14

EN

Official Journal of the European Communities

15.9.2001

Action brought on 9 July 2001 by Fallimento Distilleria
F. Palma SpA against Commission of the European Com-
munities

this and other efforts, the proper fulfilment of the requirements
for performance laid down by the European Commission was
hindered by new and unforeseeable obstacles.

(Case T-154/01)

(2001/C 259/24)

(Language of the case: Italian)

An action against the Commission of the European Communi-
ties was brought before the Court of First Instance of the
European Communities on 9 July 2001 by Fallimento Distil-
leria F. Palma SpA, represented by Francesco Caruso, lawyer.

In support of its arguments, the applicant claims that the
contested decision is contrary to the principle exonerating
economic operators on grounds of ‘force majeure’, which is
expressly referred to in Regulation No 416/96 (3). Thus, the
defendant showed itself to have been perfectly aware of having
changed both times and means of giving effect to the tender
offer by two subsequent regulations. Notwithstanding all this,
and despite reasons beyond the control of the undertaking
which was awarded the tender, the Commission, ex abrupto,
interpreted particularly strictly the conditions laid down, most
recently, in Regulation No 416/96.

The applicant claims that the Court should:

— order the Commission to make good the damage allegedly
suffered by the applicant as a result of the Commission’s
unlawful action which took the form of a memorandum
sent
to the Italian Ministero delle Risorse Agricole
Alimentari e Forestali in November 1996, forwarded by
that ministry to Distilleria Palma on 3 February 1997;

— order the Commission to pay all the costs.

Finally, the extreme, unreasonable and disproportionate nature
of the contested decision is even more evident on careful
consideration of the reason for the substantial security (a hefty
ECU 90 per hectolitre of alcohol), which the applicant lodged
at the time, which was to guarantee that it had removed the
alcohol for food use. In the present case,
it had pursued
the objective,
in guarantee of which it had provided the
abovementioned security, and there was no likelihood that the
market in alcohol for food use would be disrupted if the
request to destroy the quantity remaining in storage had been
acceded to.

Pleas in law and main arguments

The applicant in the present case contests the Commission’s
refusal, conveyed by the memorandum to the AIMA (Azienda
di Stato per gli
Interventi nel Mercato Agricolo — State
Organization for Interventions in the Agricultural Market) of
11 November 1995 and forwarded by the AIMA to Distilleria
on 3 February 1997, to allow the destruction of the residual
alcohol not used in accordance with the conditions laid down
in tender No 8/90/EC (1).

It states in that connection that immediately after the award of
the tender the first problems began to arise with regard to the
disposal of the processed alcohol
in accordance with the
Commission’s requirements (boycotts by the oil transport
companies, a proposal for a directive on tax exemptions for
biofuels), which led to an extraordinary increase in storage
costs, made it more difficult to find sites for the alcohol
removed from the intervention agencies, made it impossible
to remove further quantities of alcohol and had a negative
impact on the applicant’s plans for its use.

Moreover, after the adoption of Regulation No 2710/93 (2) the
‘serious and persistent difficulty’, which had heavily affected
the market in recent times, and the ‘special circumstances’,
which had prompted the Commission to cancel the tenders in
respect of the lots of alcohol not taken out of intervention
storage, did not change at all. The applicant, none the less,
took the initiative and removed the second lot of alcohol,
which had already been paid for since the May 1992. Despite

(1) OJ 1990 C 296, p. 10.
(2) Commission Regulation (EEC) No 2710/93 of 30 September
1993 concerning certain special sales by tender of vinous alcohol
held by intervention agencies, for use as motor fuel within the
Community; OJ L 245, 01.10.1993, p. 131.

(3) Commission Regulation (EC) No 416/96 of 7 March 1996
amending Regulation (EEC) No 2710/93 concerning certain
special sales by tender of vinous alcohol held by intervention
agencies, for use as motor fuel within the Community; OJ L 59,
8.3.1996, p. 5.

Action brought on 9 July 2001 by Laboratorios R.T.B.,
S.L. against Office for the Harmonization of the Internal
Market (trade marks and designs) (OHIM)

(Case T-156/01)

(2001/C 259/25)

(Language of the case: to be decided)

An action against Office for Harmonization in the Internal
Market (trade marks and designs (OHIM) was brought before

15.9.2001

EN

Official Journal of the European Communities

C 259/15

the Court of First Instance of the European Communities on
9 July 2001 by Laboratorios R.T.B., S.L., whose registered
office is in Barcelona (Spain), represented by Arturo Canela
Giménez.

Grounds of claim:

The applicant claims that the Court should:

— annul the decision of the First Board of Appeal of the
Office for the Harmonization of the Internal Market
(OHIM) in Case 258/2000-1 on the ground that the
disputed Community trade mark number 56 739 GIOR-
GIO AIRE may not be
to
Article 8(1)(b) of Regulation (EC) No 40/94;

registered pursuant

— declare invalid that Community trade mark;

— order the Office to pay the costs.

— Contrary to what is stated in
the contested decision, the
trade marks of which the
applicant is the proprietor
have been put to genuine use
in the market, thus fulfilling
the
of
requirements
Article 56(3) of Regulation
No 40/94 (1);

— Contrary to what is stated in
the contested decision, there
is likelihood of confusion
between the Community tra-
de mark and the trade marks
of which the applicant is the
proprietor, since the differ-
ences between them to not
allow the consumer to differ-
entiate between them.

Pleas in law and main arguments

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

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

Applicant for the Com-
munity trade mark:

Giorgio Beverly Hills, Inc.

Removal from the Register of Case T-207/99 (1)

Registered Community Word mark ‘GIORGIO AIRE’ —
Application No 56 739 for goods
trade mark:
in Class 3

Proprietor of the right to
the trade mark or sign
asserted in the invalidity
proceedings:

sign
Trade mark or
asserted in the invalidity
proceedings:

Applicant

Spanish trade marks ‘J. GIORGI’,
‘MISS GIORGI’,
‘GIORGI LINE’,
registered for goods in Class 3
and ‘AIR GIORGI’, registered for
goods in Class 5

(2001/C 259/26)

(Language of the case: Spanish)

By order of 17 May 2001, the President of the Second
Chamber of the Court of First Instance of the European
Communities has ordered the removal from the Register of
Case T-207/99, Asociacio´ n Profesional de Fruticultores del
Jalo´ n Medio v Commission of the European Communities.

(1) OJ C 333 of 14.2.00.

Removal from the Register of Case T-67/01 R

Decision of the Cancel-
lation Division:

Application for declaration of
invalidity of
trade mark
the
upheld

(2001/C 259/27)

(Language of the case: English)

Decision of the Board of
Appeal:

Annulment of the decision of the
Cancellation Division and dis-
missal of the application for dec-
laration of invalidity

By order of 10 May 2001, the President of the Chamber of the
Court of First Instance of the European Communities has
ordered the removal from the Register of Case T-67/0 R, JCB
Service v Commission of the European Communities.