Case T-7/02: Action brought on 14 January 2002 by Zapf Creation AG against the Office for Harmonisation in the Internal Market
Date: 2002-05-04
Institutions: Court of First Instance
Subjects: European Union Intellectual Property Office, action for annulment (EU), toy industry, trade mark, trade-mark law

4.5.2002

EN

Official Journal of the European Communities

C 109/47

Pleas in law and main arguments

The applicants are both part of the Omega group, which has a
substantial
interest in aviation and the provision of such
services both within and without the European Community.
The Omega group has the intention of constructing and
operating a second terminal at Dublin airport which will
provide direct competition to the present terminal operated by
Aer Rianta, the Irish state-owned company that owns and
operates Dublin, Cork and Shannon airports.

By letter dated 4 December 1998, the applicants lodged a
complaint with the Commission concerning alleged State aid
in favour of Aer Rianta. It was alleged that aid had been
granted, in particular, by a transfer of assets from the Minister
of Finance to Aer Rianta at a significant undervalue. On
5 October 2001, the Commission took a decision on the
complaint. In the second indent of Part 6 of this decision, the
Commission stated that the contested transfer of assets was
not a grant of aid.

The applicants challenge the legality of this decision on three
grounds:

— the Commission should have proceeded to open the
formal investigation procedure pursuant to Article 4(4)
of Regulation (EC) No 659/1999;

— the Commission misdirected itself as a matter of law in
determining that the transfer of assets at an undervalue
did not constitute State aid within the meaning of
Article 87(1) EC Treaty;

— the Commission gave an inadequate statement of reasons
contrary to the requirements of Article 253 EC Treaty.

European Communities on 14 January 2002 by Zapf Creation
AG, represented by Mr Axel Kockläuner of Meissner, Bolte &
Partner, Munich (Germany).

A further party to the proceedings before the Board of appeal
was Jesmar S.A.

The applicant claims that the Court should:

— annul the decision of the First Board of Appeal of
17 October 2001 in Case R 1123/2000-1 relating to
Opposition Proceedings no. B 68587 and Community
trade mark application no. 50252 ‘Colette Zapf Creation’

Pleas in law and main arguments

Applicant for the Com-
munity trade mark:

Zapf Creation AG

The Community trade
mark concerned:

The figurative mark ‘Colette Zapf
Creation’
for certain goods in
class 28

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

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

Jesmar S.A.

The Spanish word mark ‘Colette’
for certain goods in class 28

Decision of the Oppo-
sition Division:

Rejection of the opposition by
Jesmar S.A.

Decision of the Board of
Appeal:

Admission of the appeal lodged
by Jesmar S.A.

Action brought on 14 January 2002 by Zapf Creation AG
against the Office for Harmonisation in the Internal
Market

Grounds of claim:

(Case T-7/02)

(2002/C 109/94)

(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

Violation of Article 43, section 2,
of Regulation 40/94 (1) since there
was no satisfactory proof of the
the opposing
genuine use of
of
violation
and
trademark
Article 8, Section 1 b) of Regu-
lation 40/94 since there is no
danger of confusion.

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

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