Case T-257/01: Action brought on 8 October 2001 by Frosch Touristik GmbH against the Office for Harmonisation in the Internal Market (Trade Marks and Designs)
Date: 2002-01-05
Institutions: Court of First Instance
Subjects: EU trade mark, European Union Intellectual Property Office, action for annulment (EU), brand name, tourism

C 3/38

EN

Official Journal of the European Communities

5.1.2002

Pleas in law and main arguments

The applicant claims that the Court should:

The applicants are both Chinese producers of electronic
compact fluorescent lamps (CFL-i) and export those lamps to
the European Community.

On 17 May 2000, the Commission initiated an anti-dumping
proceeding concerning imports of CFL-i originating in China,
after the lodging by the European Lighting Companies Feder-
ation of a complaint. During the anti-dumping investigation.
Mexico was used, pursuant to Article 2(7)(a) of the Basic
Regulation, as the analogue market economy country for the
purposes of determining the normal value of exports from
China.

The applicants co-operated during the investigation and were
granted individual
treatment The dumping margins were
therefore determined using the normal value of the export
prices of Philips Mexicana , a subsidiary of one of the primary
complainants, as well as the normal value of the applicants’
export prices.

In support of their claims, the applicants submit that, by
adopting the Commission’s findings, the Council infringed the
basic anti-dumping Regulation, in that the Commission should
have used Article 2(7)(b) and not 2(7)(a) of that Regulation.
Alternatively,
the normal value
determined under Article 2(7)(a) was manifestly unreasonable
and discriminatory.

the applicants argue that

Action brought on 8 October 2001 by Frosch Touristik
the Office for Harmonisation in the
GmbH against

Internal Market (Trade Marks and Designs)

(Case T-257/01)

(2002/C 3/66)

— amend the decision of the second Board of Appeal of the
Office for Harmonisation in the Internal Market (Trade
Marks and Designs) of 31 July 2001 concerning appeal
No R 789/1999-2 so that it states that there are no
grounds under Article 8(1)(b) of the Regulation on the
Community trade mark for refusing to register the
Community trade mark AIR MARITIME under appli-
cation No 81.331;

— in the alternative, annul the decision of the second Board
of Appeal of the Office for Harmonisation in the Internal
Market (Trade Marks and Designs) of 31 July 2001
concerning appeal No R 789/1999-2 and order the Office
for Harmonisation in the Internal Market to continue the
registration procedure relating to the Community trade
mark AIR MARITIME under registration No 81.331
without regard to the opposing trade mark,
i.e. the
German Trade Mark Wz 1.186.278 ‘air marin’, and

— order the defendant to pay the costs of these proceedings.

Pleas in law and main arguments

Applicant for the Com-
munity trade mark:

The applicant

Community trade mark
applied for:

The word mark ‘AIR MARITIME’
for goods and services in Class 16,
39 and 42 — Application
No 81.331

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)

Proprietor of the oppos-
ing right to a trade mark
or sign:

Air Marin Flugreisen GmbH

Opposing right to trade
mark or sign:

The German word mark ‘air mar-
in’ for services in Class 39

An action against the Office for Harmonisation in the Internal
Market was brought before the Court of First Instance of the
European Communities on 8 October 2001 by Frosch Tour-
istik GmbH, Munich, represented by Hans Georg Zeiner and
Brigitte Heamann-Dunn, lawyers, with an address for service
in Luxembourg, the other party before the Board of Appeal
being Air Marin Flugreisen GmbH, Bonn (Germany).

Decision of the Oppo-
sition Division:

services

Rejection of the application for
the
agency;
arrangement and organisation of
travel;
in
Class 39

transport of persons’

‘travel

5.1.2002

EN

Official Journal of the European Communities

C 3/39

Decision of the Board of
Appeal:

Grounds
the action:

for bringing

Dismissal of the appeal

No likelihood of confusion within
the meaning of Article 8(1)(b) of
Council Regulation (EC) 40/94
of 20 December 1993 on the
Community trade mark (1)

respect to other economic and non-economic injuries arising
therefrom. The payment of these customs duties and VAT has
allegedly been avoided by smuggling cigarettes into the
European Union. This is the second time that the European
Community has commenced such proceedings (1).
In the
current proceedings, the Commission is also acting as agent
for Member States for the recovery of these taxes allegedly
owed to them.

(1) OJ 1994 L 11, p. 1.

The applicants submit that the Community has no competence
to commence these proceedings. According to the applicants,
neither the EC Treaty nor any other act confers on the
European Commission the competence to act as a legal person,
especially not outside the jurisdiction of the Member States, in
order independently to protect its financial interests in this
way outside the Community or to combat fraud in this way;
nor is the action in question a joint action by the Commission
and the Member States, since not all Member States are
involved in the proceedings.

The current proceedings also constitute, according to the
applicants, an attempt to recover the allegedly unpaid taxes.
The applicants submit that the European Commission has no
competence to collect taxes. This competence lies solely with
the Member States within their respective territories. According
to the applicants, the Commission should therefore commence
actions against the Member States for failing properly to apply
the Communities’ rules on customs duties and VAT.

The applicants also submit
the Community is not
competent to act as agent for the Member States in the
proceedings.

that

According to the applicants, the Commission has also failed to
follow the proper procedure leading up to the decision to
commence these proceedings. The Commission should have
followed the procedure set out in Article 280 (4) and 251 EC
Treaty to adopt measures combatting fraud. Furthermore, the
Commission has not respected the applicants right to be heard
and their right to be provided with reasons. Moreover, the
applicants contend that the Commission violated the principle
of legal certainty, the rights of defence and due process,
the principle of proportionality and the principle of sound
administration. Finally, the Applicants contend that the Com-
mission misused its powers.

(1) The decision to commence the first proceedings is being contested
by the applicants in Case T-379/00 (JO C 79 of 10.3.2001, p. 24).

Action brought on 15 October 2001 by R.J. Reynolds
Tobacco Holdings, Inc, R.J. Reynolds Tobacco Inter-
national, Inc, R.J. Reynolds Tobacco Company and RJR
Acquisition Corp. against the Commission of the Euro-
pean Communities

(Case T-260/01)

(2002/C 3/67)

(Language of the case: English)

An action against the Commission of the European Communi-
ties was brought before the Court of First Instance of the
European Communities on 15 October 2001 by R.J. Reynolds
Tobacco Holdings, Inc, R.J. Reynolds Tobacco International,
Inc, R.J. Reynolds Tobacco Company and RJR Acquisition
Corp., represented by Mr Paul Lomas and Mr Onno Brouwer
of Freshfields Bruckhaus Deringer, London (United Kingdom).

The applicants claim that the Court should:

— annul the Commission’s decision, which became known
to the applicant on 6 August 2001, to commence the
second US proceedings;

— order that the Commission pay the costs of the present
the applicants and

including those of

proceedings,
intervening parties.

Pleas in law and main arguments

The applicants are the defendants in legal proceedings brought
by the European Community before a United States Court, in
which the Community is seeking damages in respect of
in
allegedly unpaid customs duties and VAT, and relief