Action brought on 20 September 2001 by Japan Tobacco Inc. and JT International S.A. against the Council of the European Union and the European Parliament (Case T-223/01)
Date: 2002-01-05
Institutions: Court of First Instance
Subjects: Council of the European Union, European Parliament, action for annulment (EU), brand name, intellectual property, tobacco industry

C 3/32

EN

Official Journal of the European Communities

5.1.2002

ORDER OF THE COURT OF FIRST INSTANCE

of 10 July 2001

in Case T-191/00: Werner F. Edlinger v Commission of
the European Communities (1)

(Action for failure to act — Actionable omissions —
Inadmissibility)

Ferroatla´ntica, established in Madrid, represented by D. Voille-
mot and O. Prost, avocats, against Commission of the Euro-
pean Communities (Agents: V. Kreuschitz, S. Meany and
A.P. Bentley) — application for the amendment of
the
operative part of the order of the President of the Court of
First Instance of 1 August 2001 in Case T-132/01 R Euroalliag-
es and Others v Commission, not yet published in the ECR —
the President of the Court of First Instance made an order on
12 September 2001, the operative part of which is as follows:

(2002/C 3/55)

(Language of the case: German)

1.

2.

The application is dismissed.

The costs are reserved.

In Case T-191/00, Werner F. Edlinger, resident in Vienna,
represented by F. Frisch, lawyer, against the Commission of
the European Communities (Agents: U. Wölker and C. Laden-
burger) — application for a declaration that the Commission
unlawfully failed to act in relation to measures taken on
31 January 2000 against the Republic of Austria by the Heads
of State or Government of the fourteen other Member States
of the European Union — the Court of First Instance (Fourth
Chamber), composed of P. Mengozzi, President and V. Tiili
and R. M. Moura Ramos, Judges; Registrar H. Jung, made an
order on 10 July 2001, the operative part of which is the
following:

1)

2)

The case is dismissed as inadmissible.

The applicant is ordered to pay the costs.

(1) OJ C 285 of 7.10.2000.

Action brought on 20 September 2001 by Japan Tobacco
Inc. and JT International S.A. against the Council of the
European Union and the European Parliament

(Case T-223/01)

(2002/C 3/57)

(Language of the case: English)

ORDER OF THE PRESIDENT OF THE COURT OF FIRST
INSTANCE

of 12 September 2001

An action against the Council of the European Union and the
European Parliament was brought before the Court of First
Instance of the European Communities on 20 September 2001
by Japan Tobacco Inc. and JT International S.A., represented
by Mr Onno Brouwer and Mr Paul Lomas of Freshfields
Bruckhaus Deringer, London (United Kingdom)

in Case T-132/01 R: Euroalliages and Others v Com-
mission of the European Communities

The applicants claim that the Court should:

(Application for interim measures — Article 108 of the
Rules of Procedure)

— annul Article 7 of the Directive in its entirety; alternatively

(2002/C 3/56)

(Language of the case: French)

— annul Article 7 of the Directive to the extent that it
precludes the applicants from using their trade mark
MILD SEVEN within the European Union; and

In Case T-132/01 R: Euroalliages, established in Brussels,
Péchiney
in Courbevoie
(France), Vargön Alloys AB, established in Vargön (Sweden),

électrométallurgie,

established

— order that, pursuant

to Article 87 of

the Rules of
Procedure of the Court of First Instance, the European
Parliament and/or the Council of the European Union
pay the costs of these proceedings, including those of the
applicants and any third parties.

5.1.2002

EN

Official Journal of the European Communities

C 3/33

Pleas in law and main arguments

Action brought on 24 September 2001 by Houghton
Durferrit GmbH against the Office for Harmonisation in
the Internal Market

The Applicants are the owner and the licensee of the trade
mark ‘MILD SEVEN’, used as a cigarette brand worldwide and
protected as intellectual property. The Applicants fear that the
prohibition, against using descriptors indicating that a tobacco
product is less harmful than others, contained in Article 7 of
Directive 2001/37, will deprive the Applicants of the possi-
bility of marketing their brand ‘MILD SEVEN’ in the European
Union.

In support of their application, the Applicants claim that there
is no sufficient legal basis for the adaptation of Article 7 of the
Directive. The Directive in question is based on Articles 95
and 133 of the EC Treaty. Neither of them provides, according
to the Applicants, a sufficient basis for Article 7 of this
Directive. Article 133 does not apply since the common
commercial policy has no relevance to Article 7. Article 95 EC
Treaty does not provide a legal basis either since there is no
need to harmonise legislation on this point for the establish-
ment of the internal market. According to the Applicants,
there is no barrier to trade that needs to be removed. Further,
the Applicants claim that Article 7 of the Directive violates
Article 152(4)(c) EC Treaty. According to the Applicants,
Article 95 EC Treaty is being used as a legal basis for the
circumvention of the prohibition contained in Article 152(4)(c)
EC Treaty to harmonise legislation designed to protect and
improve human health.

The Applicants also claim that Article 7 of the Directive
violates their right to property and the principle of pro-
portionality since it would deprive the Applicants of the use
of their trade mark in the European market. According to the
Applicants, Article 7 is not an appropriate means by which to
attain the objective of this Article, which is to promote health
and consumer protection. The Applicants claim that the use
of descriptors provides the consumer with information that
allows him to choose to smoke cigarettes with a lower tar and
nicotine content. Article 7 is in any event not the least
restrictive method, since provision could have been made for
the protection of existing trade marks.

The Applicants claim further that Article 7 of the Directive
violates the principle of equal treatment. The Applicants make
clear that they are the only tobacco producers in the European
Union who would be deprived of the use of a brand as a
consequence of Article 7 of the Directive.

Finally, the Applicants submit that the grounds upon which
Article 7 of the Directive is based are insufficient.

(Case T-224/01)

(2002/C 3/58)

(Language of the case: English)

An action against the Office for Harmonisation in the Internal
Market was brought before the Court of First Instance of the
European Communities on 24 September 2001 by Houghton
Durferrit GmbH, represented by Ms Patricia Koch Moreno of
Madrid (Spain). Kolone Corporation was also a party to the
proceedings before the Board of Appeal

The applicant claims that the Court should:

— declare invalid the Decision no. 949/1999 dated 15 Octo-
ber 1999 of the Opposition Division of the Office for
Harmonisation in the Internal Market
in opposition
procedure B4905, and the decision of the First Board of
Appeal dated 6 July 2001 that dismissed the remedy
of Appeal filed by the applicant against the previous
resolution

— declare incompatible the Community trade mark filed by
Kolene Corporation, no. 40.568 NU-TRIDE, in classes 1
and 40, on the grounds of its incompatibility with the
earlier
applicant,
belonging
no. 764.560, in classes 1, 7 and 11

trade mark

to the

— refuse the registration of Community trade mark

no. 40.568 NU-TRIDE in classes 1 and 40

— order payment of the costs of these proceedings by
the holder of the foregoing Community trade mark
application, Kolene Corporation.

Pleas in law and main arguments

Applicant for the Com-
munity trade mark:

Kolone Corporation

Verbal mark
‘NU-TRIDE’ —
Application no. 40.568, relating
to goods in classes 1 and 40
(chemicals for use in the treatment
of metals and metal treatment)

The Applicant

The Community trade
mark concerned:

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