Case T-169/02: Action brought on 30 May 2002 by Cervecería Modelo, S.A. de C.V. against Office for the Harmonization of the Internal Market (trade marks and designs) (OHIM)
Date: 2002-07-27
Institutions: Court of First Instance
Subjects: EU trade mark, European Union Intellectual Property Office, action for annulment (EU), beer, catering industry, clothing, leisure, trade mark, trade-mark law

27.7.2002

EN

Official Journal of the European Communities

C 180/33

Pleas in law and main arguments

The applicant claims that the Court should:

The contested decision introduces an obligation on the
manufacturers of compound feedingstuffs for production
animals to provide an indication of the precise quantities of all
the raw material used in their products in order to protect
public health by improving the traceability of the ingredients.
According to the applicant, the effect of that measure is to
oblige disclosure of basic know-how and business secrets of
manufacturers of compound feedingstuffs.

In support of its application, the applicant claims breach of
several rights guaranteed by Community law and of objectives
pursued by the Treaty. Furthermore, the contested directive
runs counter to the safeguarding of undistorted competition
and the encouragement of technical research and development.
Moreover, it disregards property rights and the right freely to
pursue an economic activity. The applicant claims, finally, that
the directive runs counter to the objective of
improving
agricultural products and protecting the environment.

The applicant maintains, moreover, that the contested measure
is disproportionate. According to the applicant, the directive
is not capable of attaining the objective of protecting public
health and in any event goes beyond what is necessary to
achieve such an objective. The applicant further claims that
the directive does not of itself ensure the quality of the
products nor improves the traceability of the ingredients and
it places a disproportionate burden with regard to
that
labelling.

Finally, the applicant claims that the measure is based on an
erroneous legal basis. In its view, Article 37 of the EC Treaty
should be chosen as the legal basis instead of Article 152 of
the Treaty in view of the fact that the contested directive bears
no relationship to veterinary or plant health matters.

— annul the decision of the Third Board of Appeal of the

OHIM of 6 March 2002;

— order the defendant to pay the costs.

Pleas in law and main arguments

Applicant for the Com-
munity trade mark:

The applicant

The Community trade
mark concerned:

Community figurative trade mark
No 1.178.425, which depicts a
bottle of beer bearing the words
‘NEGRA MODELO’ on the label,
for products falling within Class-
es 25 (clothing), 32 (beer) and 42
(services
res-
taurants and nightclubs)

related to bars,

Proprietor of the right to MODELO CONTINENTE HIPER-
the trade mark or sign MERCADOS S.A.
asserted by way of oppo-
sition in the opposition
proceedings:

Trade mark or
sign
asserted by way of oppo-
sition in the opposition
proceedings:

Portuguese
figurative marks
No 295.800 and 295.804, which
distinguish goods in Classes 25
(clothing, including footwear) and
33 (syrups,
and non-
beer
alcoholic beverages) of the inter-
national classification respectively

Provisional refusal to register the
Community trade mark in issue
to distinguish ‘beer’ and regis-
tration in respect of ‘clothing’ and
‘services
res-
taurants and nightclubs’

related to bars,

Decision of the Board of
Appeal:

Decision of the Opposition Div-
ision upheld

Grounds of claim:

Infringement of Article 8(1)(a) of
Regulation (EC) No 40/94 (likeli-
hood of confusion)

Action brought on 30 May 2002 by Cervecerı´a Modelo,
S.A. de C.V. against Office for the Harmonization of the
Internal Market (trade marks and designs) (OHIM)

Decision of the Oppo-
sition Division:

(Case T-169/02)

(2002/C 180/57)

(Language of the case: Spanish)

An action against Office for Harmonization in the Internal
Market (trade marks and designs) (OHIM) was brought before
the Court of First Instance of the European Communities on
30 May 2002 by Cervecerı´a Modelo, S.A. de C.V., whose
registered office is in Mexico, D.F., represented by Carlos Lamo
Devesa and Antonio Vela´zquez Iba´n˜ ez.