Case T-117/02: Action brought on 15 April 2002 by Grupo El Prado-Cervera, S.L. against Office for Harmonisation in the Internal Market
Date: 2002-06-29
Institutions: Court of First Instance
Subjects: EU trade mark, European Union Intellectual Property Office, action for annulment (EU), brand name

C 156/34

EN

Official Journal of the European Communities

29.6.2002

The applicant claims that the Court should:

Finally, the applicant argues that it cannot be accused of
deception and that it has not acted with manifest negligence.

— annul Decision REM 06/01 of 14 January 2002 and allow
a rebate of the anti-dumping duties imposed to SFT
Gondrand Frères.

Pleas in law and main arguments

The applicant is an authorised customs agent. In 1997 it
released for circulation three cargo loads of urea ammonium
nitrate solution from Poland. When making the customs
declaration the applicant applied for an exemption from anti-
dumping duty which applies to imports of that product from
Poland. Following checks, the French customs authorities took
the view that anti-dumping duty was due and demanded
payment of the customs duty from the applicant.

The applicant then requested a rebate of the anti-dumping
duty and the corresponding VAT. That request was sent by the
French authorities to the Commission, which refused a rebate
of the anti-dumping duties. The applicant is challenging that
decision in this case.

The applicant claims that anti-dumping duties are not payable,
as a result of EC Regulation No 3319/94 (1). The applicant
states that the goods were invoiced directly by the Polish
company, Zaklady Azotowe Pulawy, to a French company,
Evertrade. The price of the goods was, furthermore, higher
than the minimum import price. In those circumstances the
applicant claims that to subject the contested imports to anti-
dumping duties is unjustified.

The applicant also claims that it was justifiable for the duties
to be subject to a rebate in this case in the light of one
particular factor. According to the applicant,
the idea is
to prevent dumping by means of import routes involving
intermediate companies in third countries. That danger has
been averted here, since the first buyer from the Polish exporter
was a French company. Furthermore, the regulation in question
poses difficulties of interpretation. The applicant claims that
the French authorities interpreted it in the same way as the
applicant. It also adds that its omission is a purely formal one
and has not had any real effect on the proper functioning of
the customs system.

(1) Council Regulation (EC) No 3319/94 of 22 December 1994
imposing a definitive anti-dumping duty on imports of urea
ammonium nitrate solution originating in Bulgaria and Poland,
exported by companies not exempted from the duty, and col-
lecting definitively the provisional duty imposed (OJ 1994 L 350,
p. 20).

Action brought on 15 April 2002 by Grupo El Prado-
Cervera, S.L. against Office for Harmonisation in the
Internal Market

(Case T-117/02)

(2002/C 156/64)

(Language of the case: Spanish)

An action against the Office for Harmonisation in the Internal
Market was brought before the Court of First Instance of the
European Communities on 15 April 2002 by Grupo El Prado-
Cervera, S.L., whose registered office is at Valencia (Spain),
represented by Patricia Koch Moreno.

The applicant claims that the Court should:

— declare the Decision of 12 February 2002 of the First
Board of Appeal of the OHIM rejecting the opposition
filed against Community trade mark application No
1021229, CHUFAFIT, in Classes 29 and 31 incompatible
with Article 8(1)(b) of Regulation (EC) No 40/94 on the
Community Trade Mark and annul that decision;

— declare that there is a likelihood of confusion between
Community trade mark application No 1021229, CHU-
FAFIT, in classes 29 and 31, and Spanish trade mark
No 1778419, CHUFI, registered in respect of goods in
Class 29, and Spanish trade mark No 2063328, CHUFI,
registered in respect of goods in Class 31;

— refuse Community trade mark application No 1021229,

CHUFAFIT, in Classes 29 and 31; and, finally,

— order the defendant and, if appropriate, the intervener to

pay the costs of the proceedings.

29.6.2002

EN

Official Journal of the European Communities

C 156/35

Pleas in law and main arguments

The applicant claims that the Court should:

Person applying to regis-
ter the Community trade
mark:

Community trade mark
concerned:

Proprietor of the trade
mark or distinctive sign
relied on in the oppo-
sition proceedings:

Trade mark or distinc-
tive sign relied on in the
opposition proceedings:

D.J. Debuschewits

CHUFAFIT — application for
registration No 1021229 —
application in respect of goods in
Classes 29 and 31.

The applicant company.

Spanish Trade Mark CHUFI, regis-
tered in respect of goods
in
Class 29, and Spanish graphic-
denominative mark CHUFI, with
specific distinction, registered in
respect of goods in Class 31.

Decision of the Oppo-
sition Division:

Appeal against the Opposition

Decision of the Board of
Appeal:

Appeal against the decision of the
Opposition Division dismissed.

Grounds of appeal:

application

of
Unlawful
Article 8(1)(b) of Regulation
(EC) 40/94 on the Community
Trade Mark.

Action brought on 17 April 2002 by Sunrider Corpor-
ation against the Office for Harmonisation in the Internal
Market (Trade Marks and Designs)

(Case T-124/02)

(2002/C 156/65)

(Language of the case to be determined pursuant to Article 131(2)
of the Rules of Procedure — language in which the application was
submitted: German)

An action against the Office for Harmonisation in the Internal
Market (Trade Marks and Designs) was brought before the
Court of First Instance of the European Communities on
17 April 2002 by Sunrider Corporation, Torrance (USA),
represented by A. Kockläuner, lawyer. Vitakraft-Werke Wühr-
mann & Sohn, Bremen (Germany), was an additional party to
the proceedings before the Board of Appeal.

— partially annul Decision R 368/2000-2 of the Second
Board of Appeal of 17 January 2002 to the extent that
the applicant was ordered to bear its own costs in the
opposition and appeal proceedings and that reimburse-
ment of the appeal fee was not ordered;

— order the Office to pay the costs.

Pleas in law and main arguments

The applicant filed an application for registration of the word
mark ‘VITATASTE’ in respect of goods in Classes 5 and 29 at
the Office for Harmonisation in the Internal Market (appli-
cation no 156463). Vitakraft-Werke Wührmann & Sohn
opposed that application. The opposition was based on the
German marks ‘VITAKRAFT’ and ‘VITA’ in respect of goods in
Class 5.

As a result of a private settlement with the opposing party, the
applicant limited the category of goods by removing some of
the goods claimed in Class 5. The opposing party later
withdrew its opposition but sought a decision on costs.

The Opposition Division decided that the applicant should
bear the costs of the opposition procedure. The Board of
Appeal set this decision aside and ordered each of the parties
to pay its own costs in respect of the opposition and appeal
proceedings.

The applicant is appealing against the decision of the Board of
Appeal and claims that Article 81(4) of Council Regulation
(EC) No 40/94 (1), not Article 81(3), is applicable in the present
case. Furthermore, the defendant failed to consider that the
requirements of Rule 51 of the implementing regulation (2)
were satisfied so that the Board of Appeal should have ordered
reimbursement of the appeal fee. Finally, the Board of Appeal
failed to comply with its obligation to state reasons.

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

Community trade mark (OJ 1994 L 11, p. 1)

(2) Commission Regulation (EC) No 2868/95 of 13 December
1995 implementing Council Regulation (EC) No 40/94 on the
Community trade mark (OJ 1995 L 303, p. 1)