Case C-473/01 P: Appeal brought on 6 December 2001 by Procter & Gamble Company against the judgment delivered on 19 September 2001 by the Second Chamber of the Court of First Instance of the European Communities in case T-128/00 between Procter & Gamble Company and Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM)
Date: 2002-03-16
Institutions: Court of Justice
Subjects: European Union Intellectual Property Office, General Court (EU), action for annulment (EU), household electrical appliance, polishing and scouring preparations, trade mark

C 68/4

EN

Official Journal of the European Communities

16.3.2002

Appeal brought on 6 December 2001 by Procter &
Gamble Company against the judgment delivered on
19 September 2001 by the Second Chamber of the Court
of First Instance of the European Communities in case
T-128/00 (1) between Procter & Gamble Company and
Office for Harmonisation in the Internal Market (Trade
Marks and Designs) (OHIM)

(Case C-473/01 P)

(2002/C 68/08)

An appeal against the judgment delivered on 19 September
2001 by the Second Chamber of the Court of First Instance
of the European Communities in case T-128/00 between
Procter & Gamble Company and Office for Harmonisation in
the Internal Market (Trade Marks and Designs) (OHIM) was
brought before the Court of Justice of the European Communi-
ties on 6 December 2001 by Procter & Gamble Company,
established in Cincinnati, Ohio (United States of America),
represented by C.J.J.C. van Nispen and G. Kuipers, lawyers.

The Appellant claims that the Court should:

— annul the judgment;
action was dismissed;

insofar as the remainder of the

— order the OHIM to pay the costs both at first instance

and on appeal.

Pleas in law and main arguments

The Appellant submits that the Court of First Instance erred in
the following respects:

— in deeming it unnecessary to decide whether the distinc-
tive character of the Mark should be assessed by reference
to the date on which the application for registration is
filed or the date of actual registration;

— in holding that the level of attention given by the average
consumer to the shape and colours of washing machine
and dishwasher tablets is not high;

— in deeming it appropriate to ascertain whether the Marks
applied for will enable the members of the public targeted
to distinguish the products from those having a different
trade origin when they come to select a product for
purchase;

— in holding that

the bevelled edges, slightly rounded
corners or chamfered edges of the tablets are not likely to
be perceived by the average consumer as a distinctive
feature of the shape claimed, capable of distinguishing it
from other washing machine or dishwasher tablets and
in failing to assess whether such features were already
part of the usual get up(s) of thetablets on the market

at the relevant date and, if not, whether the difference is
perceptible, rendering it apt to confer distinctive character
on the Marks;

— in failing to assess whether the specific pattern (speckles
and square or triangular inlays in the centre and on the
upper surface of the tablet) was already part of the usual
get-ups of the tablets on the market at the relevant date
and, if not, whether the difference is perceptible, rendering
it apt to confer distinctive character on the Marks.

(1) OJ C 192, 8.7.2000, p. 25.

Action brought on 6 December 2001 by the Commission
the Hellenic
of

the European Communities against

Republic

(Case C-475/01)

(2002/C 68/09)

An action against the Hellenic Republic was brought before
the Court of Justice of the European Communities on 6 Decem-
ber 2001 by the Commission of the European Communities,
represented by Maria Kondou-Durande and Enrico Traversa,
Legal Advisers.

The Commission claims that the Court should:

— declare that, by maintaining in force excise duty on ouzo
at a lower rate than that applied to other alcoholic
beverages, the Hellenic Republic has failed to fulfil its
obligations under the first paragraph of Article 90 of the
EC Treaty;

— order the Hellenic Republic to pay the costs.

Pleas in law and main arguments

Law No 2127/93 transposes Directive 92/83/EEC (1)
into
Greek law. That Law sets the basic rate of excise duty at GRD
per 100 litres of pure alcohol. However, Article 26 of the Law
provides for a 50 % reduction in the basic rate with regard to
ouzo. Thus, for that particular product the excise duty amounts
to only GRD per 100 litres of pure alcohol.