Case T-94/02: Action brought on 27 March 2002 by Hugo Boss AG against the 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), dairy ice cream, intellectual property, trade mark, trade-mark law

29.6.2002

EN

Official Journal of the European Communities

C 156/29

Pleas in law and main arguments

Action brought on 27 March 2002 by Hugo Boss AG
against the Office for Harmonisation in the Internal
Market

The applicant manages, as general partner, the business of the
company Klausner Nordic Timber GmbH which was founded
in Wismar in 1998. By the
in 1997 and built a sawmill
contested decision, the Commission declared the State aid
which the Federal Republic of Germany granted to the
applicant in relation to the construction and expansion of the
sawmill to be incompatible with the common market.

The applicant claims, first, that the guarantee in excess of
EUR 15,21 million with an aid component of 0,5 % must be
regarded as ‘de minimis’ aid, thus precluding a Commission
decision ordering the recovery of that aid. The Commission
therefore wrongly applied Article 87 EC by failing to comply
with Commission Regulation (EC) No 69/2001 (1) and/or the
notice on the de minimis rule for State aid.

The applicant further submits that the Commission misapplied
Articles 87 and 88 EC and the German Investment Allowance
Law. The Investment Allowance Law of 1999 provides for the
grant of a tax investment allowance for the acquisition and
manufacture of capital equipment and buildings by businesses
located in the former East Germany and was approved in its
entirety by the Commission. The requirements of the Law are
fulfilled, so that the investment allowance in favour of the
applicant was lawful. The Commission’s decision that the grant
of an investment allowance to the applicant was permissible
only as to 10 % is therefore unlawful.

(Case T-94/02)

(2002/C 156/57)

(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
European Communities on 27 March 2002 by Hugo Boss AG,
represented by Mr Emmanuel Baud of Latham & Watkins,
Paris (France). A further party to the proceedings before the
Board of Appeal was Delta Protipos Biomichania Galaktos S.A.

The applicant claims that the Court should:

— annul the contested Decision rendered by the Fourth
in its ruling no. R0053/2001-4 on

Board of Appeal
12 December 2001;

— order that the BOSS Community Trade Mark application

nr 331462 for ice cream be rejected;

— order the OHIM to pay the costs.

Pleas in law and main arguments

Applicant for the Com-
munity trade mark:

Delta
Galaktos S.A.

Protipos

Biomichania

The Community trade
mark concerned:

The word mark ‘BOSS’ for certain
goods in classes 29, 30, 31, 32
and 33

Moreover, the applicant claims that the decision constitutes an
infringement of the prohibition venire contra factum proprium
and the Community principle of the protection of legitimate
expectations. Furthermore, the Commission unlawfully failed
to consider the actual aid intensity amount and infringed
Council Regulation (EC) No 659/1999 and Article 253 EC (2).
Finally, the Commission infringed Articles 87, 88 and 253 EC
by way of its formulaic and inaccurate consideration of the
company Klausner Nordic Timber as a large-scale company.

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:

Hugo Boss AG

The German registration of the
for certain
word mark ‘BOSS’
goods in classes 3, 9, 14, 18,
24 and 25 and the following
international registration of this
mark as well as the international
the word mark
registration of
‘BOSS’ for certain goods in class-
es 29, 30, 31, 32 and 33 and the
international registration for these
same goods of the word mark
‘BOSS HUGO BOSS’.

(1) Commission Regulation (EC) No 69/2001 of 12 January 2001 on
the application of Articles 87 and 88 of the EC Treaty to de
minimis aid (OJ 2001 L 10, p. 30).

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

Decision of the Oppo-
sition Division:

Rejection of the opposition.

Decision of the Board of
Appeal:

Dismissal of
duced by Hugo Boss AG.

the appeal

intro-

C 156/30

EN

Official Journal of the European Communities

29.6.2002

Grounds of claim:

Violation of Article 8(5) of
40/94 (1).
Council Regulation
According to the applicant, the
trade mark is detrimental to the
repute of the earlier trade mark
and constitutes an unfair advan-
tage for Delta.

According to the applicant, the Commission made manifest
errors of assessment and errors in law in concluding that the
commitments are sufficient to take away the said competitive
concerns and has therefore violated Articles 2 (2) and 8 (2) of
the Merger Regulation (2).

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

Community trade mark (OJ 11, p. 1)

Action brought on 5 April 2002 by Ineos NV against the
Commission of the European Communities

(Case T-99/02)

(2002/C 156/58)

(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 5 April 2002 by Ineos NV,
represented by Mr Julian Ellison, Mr Mark Clough QC and Mr
Matthew Hall of Ashurst Morris Crisp, Brussels (Belgium).

The applicant claims that the Court should:

— annul, under Article 230 of the EC Treaty, the Com-
mission Decision in case no. COMP/M.2389-Shell/DEA
in its entirety and/or insofar as it concerns the market for
supply of merchant ethylene;

— order the Commission to pay the costs.

Pleas in law and main arguments

The applicant in the present case is a purchaser of merchant
ethylene on the ARG+ pipeline network in Belgium, the
Netherlands and western Germany.

The applicant contests the Decision of
the Commission
declaring an operation where Deutsche Shell GmbH would
acquire sole control of the undertaking DEA Mineraloel AG
under certain conditions compatible with the common market
and the EEA Agreement. These conditions were necessary
since the operation gave rise to competition concerns on the
ARG+ merchant ethylene market. In particular, there was a
risk of creating a joint dominant position of Shell/DEA and
BP/Veba Oel (case no. COMP/M.2533-BP/E.ON (1). These cases
were treated similarly by the Commission.

In the contested Decision in the present case, the Commission
imposed on Shell and DEA the obligation to make available,
up to a certain quantity, access to Shell’s terminal facilities to
producers of ethylene. This remedy is based, according to the
applicant, on an error of assessment. The applicant submits
that this obligation is unclear in its definition of the entities
that should be granted access. As a consequence, this remedy
could be made ineffective if access is granted to entities who
should not, according to the applicant, benefit from this access.
The remedy is also limited in time, while the situation after its
expiry will remained the same as it was originally. Furthermore,
the applicant claims that the volume of ethylene that can be
put on the ARG+market in this manner is insufficient to
remedy the constraints on competition caused by the oper-
ation.

The Commission also made an error in law since there is no
protection for third parties on the market until the remedies
in the Shell/DEA case and in the BP/E.ON case become
effective. The remedies imposed in each case are only effective
if the remedies in the other case are operative as well. The
remedies to be given by Shell/DEA will not, however, be
operative until 1 January 2003 or later. Therefore,
the
jointly dominant position will, according to the applicant, be
unconstrained until all the remedies are operative. Meanwhile,
the contested Decision does not provide for any interim
protection for third parties.

The applicant claims in addition that the errors of assessment
and the error in law of the Commission concerning the remedy
in the BP/E.ON case is another ground for annulment of the
Decision contested in the present case since both cases are so
closely related to each other.
the
Commission considered that the commitment to reduce the
combined shareholding of BP and Veba Oel, by two out of
three shares, would achieve open access at reasonable prices
for use of the ARG pipe network.

In the BP/E.ON case,

The applicant argues that the remedy in the BP/E.ON case
gives no control over how the future shareholders will conduct
themselves with regard to the company’s future strategy, and
that there is, therefore, no guarantee that this remedy would
reconstitute the ARG pipe network as a common carrier.
Furthermore, the applicant states that the transfer of a share
needs the unanimous approval of all the other shareholders,
which constitutes an element of uncertainty in the remedy.
The applicant submits also that the Commission has made an
error in law since the remedy gives no provisional solution to
the problems of lack of access and high transportation charges
on the pipe network until the divestment of the shares.