Case T-91/02: Action brought on 28 March 2002 by Klausner Nordic Timber GmbH & Co. KG against the Commission of the European Communities
Date: 2002-06-29
Institutions: Court of First Instance
Subjects: European Commission, Germany, State aid, action for annulment (EU), wood industry

C 156/28

EN

Official Journal of the European Communities

29.6.2002

The applicant further submits that Article 8 (4) of the Merger
Control regulation, which constitutes the legal basis of the
present Decision, is only applicable where a concentration has
been implemented. The applicant states, however, that the
concentration in this case has not been implemented in any
way.

Pleas in law and main arguments

The Communuity Trade
Mark concerned:

SECURECLIENT

the applicant argues that

Thirdly,
the modalities for the
divestiture constitute an infringement of Community law.
According to the applicant,
these modalities are dispro-
portionate and exceed the Commission’s competences under
Article 8(4) of the Merger Control Regulation.

The applicant finally claims that the Commission has failed to
respect the applicant’s procedural rights, in that the Com-
mission did not respect the applicant’s right to be heard and
relied on information not provided to the applicant.

Product or service:

‘Computer software to protect
systems
from unauthorised
access’, in International Class 9.

Challenged
before
Appeal:

Decision
the Board of

Refusal of
Examiner.

registration by the

Grounds submitted:

Infringement of Article 7(1)(b)
and (c) of Regulation No 40/94.

(1) Council Regulation (EEC) No 4064/89 of 21 December 1989 on
the control of concentrations between undertakings (OJ L 395 of
30.12.1989 p. 1; text republished in OJ L 257 of 21.9.1990,
p. 13).

Action brought on 28 March 2002 by Klausner Nordic
Timber GmbH & Co. KG against the Commission of the
European Communities

Action brought on 20 March 2002 by Check Point
Software Limited against the Office for Harmonisation in
the Internal Market

(Case T-89/02)

(2002/C 156/55)

(Language of the case: English)

(Case T-91/02)

(2002/C 156/56)

(Language of the case: German)

An action against the Office for Harmonisation in the Internal
Market was brought before the Court of First Instance of the
European Communities on 20 March 2002 by Check Point
Software Limited, represented by Mr Graham Farrington of
Farrington & Co Solicitors, Reading (United Kingdom).

An action against the Commission of the European Communi-
ties was brought before the Court of First Instance of the
European Communities on 28 March 2002 by Klausner Nordic
Timber GmbH & Co. KG, Wismar (Germany), represented by
D.O. Reich, lawyer, with an address for service in Luxembourg.

The applicant claims that the Court should:

The applicant claims that the Court should:

— annul the Decision of the defendant’s First Board of

Appeal of 7 January 2002; and

— order the defendant

the application to its
to remit
Examination Division for re-examination of Community
Trade Mark no. 1744168 (SECURECLIENT).

— annul the Commission’s decision of 15 January 2002 on
State aid granted by Germany to Klausner Nordic Timber
GmbH & Co. KG;

— order the defendant to pay the costs.

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-