Case T-156/02: Action brought on 15 May 2002 by Sunrider Corporation against the Office for Harmonisation in the Internal Market (Trade Marks and Designs)
Date: 2002-07-13
Institutions: Court of First Instance
Subjects: European Union Intellectual Property Office, action for annulment (EU), brand name, domestic market

C 169/42

EN

Official Journal of the European Communities

13.7.2002

Pleas in law and main arguments

The applicant claims that the Court should:

Applicant for the Com-
munity trade mark:

The applicant

The Community trade
mark concerned:

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:

Decision of the Oppo-
sition Division:

Decision of the Board of
Appeal:

Grounds of claim:

Verbal mark ‘BIO-CANISAN’ —
Application No 353 896, relating
to goods in classes 5 and 31
(veterinary preparations and food-
stuffs for animals)

VETO-Centre

French trade marks No 1582968
‘biocanina ’(word and device),
relating to goods in classes 5 and
31, and No 1350892 ‘BIOCANI-
NA’), relating to goods in class 5

Refusal of the application

Dismissal of the appeal

Infringement of Article 43(2),
third sentence, and Article 8(1)(b)
of Regulation (EC) No 40/94.

— annul the Commission’s decision dated 22 January 2001;

— order the Commission to compensate the applicants for
their loss of earnings and other benefits caused by the
breaches of Community law;

— order the Commission to pay the applicants’ costs.

Pleas in law and main arguments

The applicants all worked in the JET Project as employees or
contractors to UK registered companies. According to the
applicants, however, they should have been recruited by the
Commission as temporary agents since they were part of the
JET Project Team.

The applicants claim that the failure of the Commission to
recruit the applicants as temporary agents was contrary the
JET statutes and constitutes an act ultra vires. According to the
applicants, the JET statutes did not provide for the possibility
of engaging staff who were working in the JET Project Team
through external contractors.

Furthermore, the applicants claim that the Commission dis-
criminated against them since this resulted in the applicants
being treated in a less favourable manner then those employed
by the Commission who were fulfilling substantially similar
roles in the JET Project.

Action brought on 7 May 2002 by Richard J. Eagle, John
G. Fanthome, Martin Gardener, Robert C. Walton, David
Sands, Alexander Gaberscik, Beryl Marrs, Clifford Marren,
Robert Felton, Carol Brickley, TF Atkins, Michael George
Grant and Edward Junger against the Commission of the
European Communities

(Case T-144/02)

(2002/C 169/74)

(Language of the case: English)

Action brought on 15 May 2002 by Sunrider Corporation
against the Office for Harmonisation in the Internal
Market (Trade Marks and Designs)

(Case T-156/02)

(2002/C 169/75)

(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 Commission of the European Communi-
ties was brought before the Court of First Instance of the
European Communities on 7 May 2002 by Richard J. Eagle,
John G. Fanthome, Martin Gardener, Robert C. Walton, David
Sands, Alexander Gaberscik, Beryl Marrs, Clifford Marren,
Robert Felton, Carol Brickley, TF Atkins, Michael George Grant
and Edward Junger, represented by Mr Daniel Beard of
Monckton Chambers, London (United Kingdom).

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
15 May 2002 by Sunrider Corporation, Torrance (USA),
represented by A. Kockläuner, lawyer.

Frieslands Brands B.V., Leeuwarden (the Netherlands) was an
additional party to the proceedings before the Board of Appeal.

13.7.2002

EN

Official Journal of the European Communities

C 169/43

The applicant claims that the Court should:

Removal from the register of Case T-203/00 (1)

— partially annul Decision R 34/2000-1 of the First Board
of Appeal of 21 February 2002 to the extent that the
applicant was ordered to bear half of the opposition fees
as well as its owns costs in the opposition and appeal
proceedings;

— order the Office to pay the costs.

Pleas in law and main arguments

The applicant filed an application for registration of the word
mark ‘METABALANCE 44’ in respect of goods in Classes 5
and 29 at the Office for Harmonisation in the Internal Market
(application no 155747). Frieslands Brands B.V. opposed that
application. The opposition was based on various national and
international marks including, inter alia, ‘BALANCE’, ‘BALANS’
and ‘FRIESISCHE FLAGGE BALANCE’ in respect of, inter alia,
goods in Classes 5 and 29.

As a result of a private settlement with the opponent, the
applicant limited the category of goods by removing some of
the goods claimed in Class 29. The opponent 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 the more specific Article 81(4) of
Council Regulation (EC) No 40/94 (1) , not Article 81(3), is
applicable in the present case. The defendant thus failed to
take into account the fundamental assessment criteria and to
observe the principle of proportionality.

in the applicant’s opinion,

Moreover,
the defendant also
wrongly applied the assessment criteria in Article 81(3) in
conjunction with Article 81(2) of Council Regulation (EC)
No 40/94. In the applicant’s view, that provision requires
that a decision on costs should take into account general
considerations of equity and fairness.

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

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

(2002/C 169/76)

(Language of the case: Dutch)

By order of 25 February 2002 the President of the Third
Chamber of the Court of First Instance of the European
Communities ordered the removal from the register of Case
T-203/00: Beemsterboer Coldstore Services B.V. v Commission
of the European Communities.

(1) OJ C 302 of 21.10.2000.

Removal from the register of Case T-309/00 (1)

(2002/C 169/77)

(Language of the case: French)

By order of 17 April 2002 the President of the First Chamber
of the Court of First Instance of the European Communities
ordered the removal from the register of Case T-309/00: S.A.
Cimenteries CBR v Commission of the European Communities.

(1) OJ C 335 of 25.11.2000.

Removal from the register of Case T-14/02 (1)

(2002/C 169/78)

(Language of the case: English)

By order of 9 April 2002 the President of the Fifth Chamber
of the Court of First Instance of the European Communities
from the register of Case T-14/02:
ordered the removal
Agrofair Benelux BV and Others v Commission of
the
European Communities.

(1) OJ C 109 of 4.5.2002.