Case C-150/02 P: Appeal brought on 25 April 2002 by Streamserve Inc. against the judgment delivered on 27 February 2002 by the Fourth Chamber of the Court of First Instance of the European Communities in case T-106/00 between Streamserve Inc. and the Office for Harmonization in the Internal Market (Trade Marks and Designs) (OHIM)
Date: 2002-07-13
Institutions: Court of Justice
Subjects: EU trade mark, European Union Intellectual Property Office, action for annulment (EU), computer equipment, consumer information, software, trade mark

C 169/16

EN

Official Journal of the European Communities

13.7.2002

Pleas in law and main arguments

The judgment of
Instance infringed
the Court of First
Article 90(3) of the EC Treaty (now Article 86(3) EC), as well
as the ‘right to sound administration’ and the Commission’s
in so far as it inferred that
‘general duty of supervision’,
to have their complaint under
individuals have a right
Article 90 of the EC Treaty (now Article 86 EC) dealt with and
a corresponding right of action. Moreover,
it erroneously
inferred that complaints by individuals in the context of
Article 90 of the EC Treaty are dismissed by a decision
addressed to the complainant. In that connection the Court of
First Instance has at any rate infringed Article 90(3). If so, and
in so far as it based its conclusions thereon it has also infringed
the ‘right to sound administration’ and/or the ‘general duty of
supervision’. Finally, the Court infringed Article 173(4) of the
EC Treaty (now Article 230(4) EC) by assuming (in the
alternative) that max.mobil is individually concerned by the
contested letter.

(1) Case T-54/99 max.mobil Telekommunikation Service GmbH v

Commission [2002] ECR II-0000.

Appeal brought on 25 April 2002 by Streamserve Inc.
against the judgment delivered on 27 February 2002 by
the Fourth Chamber of the Court of First Instance of
the European Communities in case T-106/00 (1) between
Streamserve Inc. and the Office for Harmonization in the
Internal Market (Trade Marks and Designs) (OHIM)

(Case C-150/02 P)

(2002/C 169/29)

An appeal against the judgment delivered on 27 February
2002 by the Fourth Chamber of the Court of First Instance
of the European Communities in case T-106/00 between
Streamserve Inc. and the Office for Harmonization in the
Internal Market
(OHIM), was
brought before the Court of Justice of the European Communi-
ties on 25 April 2002 by Streamserve Inc., established in
Raleigh, North Carolina (United States of America), represented
by J. Kääriäinen and R. Berzelius, lawyers, with an address for
service in Luxembourg.

(Trade Marks and Designs)

in the Internal Market (Trade Marks and Designs) did not
infringe Article 7 (1)
(c) of Council Regulation (EC)
No 40/94 of 20 December 1993 on the Community
trade mark (2) in adopting its decision of 28 February
2000 (Case R 423/1999-2) with the exception as regards
goods in the categories ‘manuals and publications’;

2.

3.

for the rest, annul the decision of the Second Board of
Appeal of the Office for Harmonization in the Internal
Market (Trade Marks and Designs) of 28 February 2000
(Case R 423/1999-2);

order the Office for Harmonization in the Internal Market
(Trade Marks and Designs) to pay the costs both at first
instance and on appeal.

Pleas in law and main arguments

The Appellant maintains that the Court of First Instance
misinterpreted Article 7 (1) (c) of Regulation 40/94 when it
held that the aforementioned article prevents the signs or
indications referred to in that provision from being reserved
to one undertaking alone because they have been registered as
a mark and that the provision thus pursues an aim which is in
the public interest, namely that such signs or indications may
be freely used by all.

In the Appellant’s view the criteria applied by the Court of
First Instance in the application of Article 7 (1) (c) to the facts
of the case are too severe.

(1) OJ C 176, 24.6.2000, p. 29.
(2) OJ L 11, 14.1.1994, p. 1.

Action brought on 26 April 2002 by the Commission
of the European Communities against the Republic of
Austria

(Case C-155/02)

(2002/C 169/30)

The Appellant claims that the Court should:

1.

annul the judgment of the Court of First Instance of
27 February 2002 in case T-106/00, Streamserve Inc. v.
OHIM (‘STREAMSERVE’), in so far as it found that the
Second Board of Appeal of the Office for Harmonization

An action against the Republic of Austria was brought before
the Court of Justice of the European Communities on 26 April
2002 by the Commission of the European Communities,
represented by Josef Christian Schieferer, of its Legal Service,
with an address for service in Luxembourg at the office of Luis
Escobar Guerrero, of its Legal Service, at Wagner Centre C 254,
Kirchberg, Luxembourg.