Case T-292/01: Action brought on 28 November 2001 by Phillips-Van Heusen Corporation against Office for the Harmonization of the Internal Market (trade marks and designs) (OHIM)
Date: 2002-02-16
Institutions: Court of First Instance
Subjects: EU trade mark, European Union Intellectual Property Office, action for annulment (EU), clothing, footwear industry

C 44/20

EN

Official Journal of the European Communities

16.2.2002

of Dessau

Versorgungs- und Verkehrsgesellschaft mbH — DVV —
Stadtwerke,
(Germany), Neubrandenburger
Stadtwerke GmbH, of Neubrandenburg (Germany), Stadtwerke
Schwäbisch Hall GmbH, of Schwäbisch Hall
(Germany),
Stadtwerke Tübingen GmbH, of Tübingen (Germany) and
Stadtwerke Uelzen GmbH, of Uelzen (Germany), represented
by D. Fouquet, lawyer.

The applicants claim that the Court should:

— declare that, by failing, within two months after being
formally called upon by letter of 29 August 2001 to act
pursuant to the second paragraph of Article 232 EC, to
examine the complaint made on the basis of Articles 87
and 88 EC and to reach a decision in the light of that
examination, the Commission has infringed Article 232
EC;

— order the Commission to pay the costs of the proceedings,
including the costs incurred by the applicants, even in the
event that, following the bringing of the action, the
Commission takes action in such a way that,
in the
opinion of the Court, the proceedings have become
nugatory.

Pleas in law and main arguments

The applicants are German public utilities producing their own
electricity. Since the introduction of competition in the
electricity market, the applicants, as energy suppliers, have
been in competition with, in particular, the 19 existing nuclear
power stations as regards the production of electricity in the
Federal Republic of Germany.

According to the applicants, the nuclear power station oper-
ators set aside reserves in their commercial and tax balance
sheets in respect of the cost of having to close down at some
future date and the disposal of irradiated fuel elements and
radioactive waste. The disposal and shutting-down costs are
allocated to the sales proceeds from continuous electricity
production. However, according to the applicants, the obli-
gation under commercial law to set aside reserves affects, at
the same time, the way in which the nuclear power station
operators are treated for tax purposes. As a result of the
German tax rules, a significant part of the tax additionally
demanded is in fact made freely available to the nuclear power
station operators by virtue of the legislation on tax relief.

The applicants assert that the exemption of reserves under
fiscal law in favour of nuclear power stations constitutes a
grant by the Federal Republic of Germany of unlawful, non-
notified aid which is incompatible with the common market.
They maintain that the Commission was obliged to open a
formal procedure against the Federal Republic of Germany

pursuant to Articles 10(1), 13(1) and 4(4) of Council Regu-
lation (EC) No 659/1999 (1). Had it done so, the Commission
would then have been constrained, under the law applicable
to grants of aid, to adopt a negative decision against the Federal
Republic of Germany on the facts as stated.

(1) Council Regulation (EC) No 659/1999 of 22 March 1999 laying
down detailed rules for the application of Article 93 of the EC
Treaty (now Article 88 EC) (OJ 1999 L 83, p. 1).

Action brought on 28 November 2001 by Phillips-Van
Heusen Corporation against Office for the Harmonization
of the Internal Market (trade marks and designs) (OHIM)

(Case T-292/01)

(2002/C 44/38)

(Language of the case: Italian)

An action against Office for Harmonization in the Internal
Market (trade marks and designs) (OHIM) was brought before
the Court of First Instance of the European Communities on
28 November 2001 by Phillips-Van Heusen Corporation of
New York (United States of America), represented by Fabrizio
Jacobacci. The other party in proceedings before the Com-
mission was: Pash Textilvertrieb und Einzelhandel GmbH of
Munich (Germany)

The applicant claims that the Court should:

— annul Decision R 0740/2000-3 of the Third Board of
Appeal of the Office for Harmonization in the Internal
Market (Trade Marks and Designs) of 12 September 2001
notified on 28 September 2001 to the applicant;

— definitively reject the opposition brought by the defend-
ant against
registration of Community trade mark
No 161331 BASS, on behalf of Phillips-Van Heusen
Corporation, in respect of the whole of Class 25;

— order the Office for Harmonization in the Internal Market
(Trade Marks and Designs) (OHIM) to register Community
trade mark No 161331 BASS;

— order the defendant and the OHIM to pay, jointly or
severally, to the applicant the costs, expenses and fees
incurred in both the present proceedings and the oppo-
sition and appeal proceedings before the Office for
Harmonization in the Internal Market.

16.2.2002

EN

Official Journal of the European Communities

C 44/21

Pleas in law and main arguments

The applicant claims that the Court should:

Applicant for the Com-
munity trade mark:

The applicant

The Community trade Word mark ‘BASS’ — application
No 161331, registration sought
mark concerned:
in respect of goods in Class 25
(footwear and clothing)

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

sign
Trade mark or
asserted by way of oppo-
sition in the opposition
proceedings:

Decision of the Oppo-
sition Division:

Pash Textilvertrieb und Einzelhan-
del GmbH

German mark registered under
the name ‘PASH’, registered in
order
various
articles in international classes 18
and 25

distinguish

to

— annul the decision of 29 January 2001 of the Head of
Unit ADMIN B 3 fixing her place of recruitment at
Brussels and refusing to grant her the daily subsistence
allowance;

— annul the implied rejection of the applicant’s complaint
of 27 April 2001 against the original contested decision;

— order the Commission to pay to the applicant

the
amounts to which she is entitled as a result of having
Rome as her place of recruitment, as set out in the
grounds, and in particular the daily subsistence allowance,
with default interest at 7 % per annum, as from the date
on which those amounts fell due until payment is made
in full;

— order the Commission to pay the costs.

Opposition dismissed

Pleas in law and main arguments

Decision of the Board of
Appeal:

Annulment of the decision of the
Opposition Division

Grounds of claim:

— Inconsistency between the
form of order sought and
the order made, since the
opposition was not brought
against
‘shoes’ men-
tioned in Class 25

the

— Coexistence of

the marks
‘BASS’ and ‘PASH’ on the
German market

— Misapplication

of

Ar-
ticle 8(1)(b) of Regulation
(EC) No 40/94 (likelihood of
confusion).

The applicant was seconded to the Commission in Brussels for
three years before being engaged as a member of the auxiliary
staff. For that purpose, the applicant’s place of recruitment was
set as Rome. The applicant was subsequently engaged as a
member of the temporary staff for an indeterminate period,
with Brussels as the place of recruitment. That decision is
contested by the applicant.

In support of her application, the applicant pleads an error in
law as regards the concept of ‘residence’ and a manifest error
of assessment. According to the applicant, her residence in
Brussels was provisional during the entire period of her
engagement with the Commission in Brussels. In her sub-
mission, the facts demonstrate that her habitual residence
remained Rome. Moreover, the applicant claims that the
Commission illegally withdrew a decision giving rise to
entitlement. Initially, the place of recruitment of the applicant
was Rome when she took up her duties as a member of
the temporary staff. That decision was withdrawn by the
subsequent contested decision not to grant the applicant
entitlement to the daily subsistence allowance.

Action brought on 3 December 2001 by Donatella Ineich-
en against Commission of the European Communities

(Case T-293/01)

(2002/C 44/39)

(Language of the case: French)

An action against the Commission of the European Communi-
ties was brought before the Court of First Instance of the
European Communities on 3 December 2001 by Donatella
Ineichen, residing in Brussels, represented by Marc-Albert
Lucas, lawyer.

Action brought on 3 December 2001 by Lucı´a Aparicio
Chofré against Commission of the European Communities

(Case T-294/01)

(2002/C 44/40)

(Language of the case: Spanish)

An action against the Commission of the European Communi-
ties was brought before the Court of First Instance of the